Gujarat High Court
State Of Gujarat vs Jagdish Hirabhai Malam on 3 July, 2026
NEUTRAL CITATION
R/CR.A/140/2000 JUDGMENT DATED: 03/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 140 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 Yes
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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.
239/1999 on 31.12.1999, whereby, the learned Trial Court
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has acquitted the respondent for the offence punishable
under Sections 302 and 404 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
did not give the monetary share in the property to Hirabhai
the father of the accused and hence, Hirabhai refused to
affix his signature on the transfer entries of the immovable
property and due to this grievance in the wee hours of
09.07.1996 while Raniben – the grandmother of the accused
was sweeping the enclosed courtyard, the accused
strangulated her and caused her death and took her gold
earrings and the black beaded silver prayer beads from her
neck. The complaint was filed by the complainant –
Rambhai Jivabhai Sisodia on 23.11.1996 at the Maliya
Hatina Police Station under Sections 302 and 404 of Indian
Penal Code, 1860 which came to be registered as I – C.R.
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No. 68 of 1996.
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. 239/1999.
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.
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2.4 The prosecution examined 9 witnesses and produced
17 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 learned Trial
Court has failed to appreciate that the ornaments of the
deceased were recovered from the respondent and the son of
the deceased has identified the ornaments and a
panchnama to that effect is on record at Exh. 19. The
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learned Trial Court has failed to appreciate that the
respondent had confessed before two witnesses that he had
committed the murder of the deceased and in the deposition
of witness Rambhai, he has clearly deposed that the
respondent had confessed about the incident before himself
as well as the other witnesses. The learned Trial Court has
not properly appreciated the evidence of the witnesses and
has committed an error in observing minor omissions and
contradiction in the evidence of the prosecution witnesses.
In fact, there are no material omissions or contradictions in
the deposition of the witnesses and the learned Trial Court
has failed to appreciate that the entire case depends on
circumstantial evidence. The learned Trial Court ought to
have believed the confessional statement of the respondent
which is corroborated with the other evidence. The learned
Trial Court has committed an error in concluding that the
panchnama at Exh. 14 cannot be said to be a discovery
panchnama, but is only a recovery panchama and irrelevant
facts have been taken into consideration while appreciating
the evidence and acquitting the accused. The impugned
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judgement and order is illegal, improper and bad in law and
is required to be quashed and set aside.
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
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 complainant and other witnesses. On
the basis of this judicial confession, the complaint was filed
and during investigation, the ornaments that were on the
body of the deceased, at the time of her death, were
recovered from the custody of the respondent. Hence, it is
proved that the respondent was responsible for the offence
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and he had committed the murder of deceased Raniben.
The prosecution has also proved that there was a family
dispute regarding the property as the grandfather of the
respondent 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 Raniben who was his grandmother.
The learned Trial Court has not appreciated the evidence in
proper perspective and the impugned judgement and order
of acquittal is required 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 P. Somaraju Vs. State of Andhra Pradesh reported
in 2025 LawSuit (SC) 1423, in paras 11 and 12 which is
reproduced as under:
11. Before proceeding, it would be appropriate to recapitulate the
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well-settled principles governing interference with an order of
acquittal by an Appellate Court, which were also discussed by
the High Court in the impugned judgment. At the outset, we rely
upon the seminal case of Chandrappa & Ors. vs. State of
Karnataka 2007 (4) SCC 415 wherein this Court had laid down
the five-point canonical test as follows:
“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:
(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 criminalPage 8 of 33
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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.” 4 (2007)
4 SCC 415.
12. To summarize, an Appellate Court undoubtedly has full
power to review and reappreciate evidence in an appeal against
acquittal under Section 378 and 386 of the Code of Criminal
Procedure, 1973. Howevesr, due to the reinforced or ‘double’
presumption of innocence after acquittal, interference must be
limited. If two reasonable views are possible on the basis of the
record, the acquittal should not be disturbed. Judicial
intervention is only warranted where the Trial Court’s view is
perverse, based on misreading or ignoring material evidence, or
results in manifest miscarriage of justice. Moreover, the
Appellate Court must address the reasons given by the Trial
Court for acquittal before reversing it and assigning its own. A
catena of the recent judgements of this Court has more firmly
entrenched this position, including, inter alia, Mallappa & Ors.
vs. State of Karnataka, 2024 INSC 104, Ballu @ Balram @
Balmukund & Anr. vs. The State of Madhya Pradesh 2024 INSC
258, Babu Sahebagauda Rudragaudar and Ors. vs. State of
Karnataka 2024 INSC 320 and Constable 907 Surendra Singh &
Anr. vs. State of Uttarakhand 2025 INSC 114.
7. It is a settled principle of law that in an appeal against
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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
when there are compelling and substantial reasons and the
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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 – Ramabhai Jivabhai at
Exh. 8 and the witness is the complainant in the present
case. In his examination-in-chief, he has deposed that he
was acquainted with both the deceased persons as well as
the accused and their respective families. According to him,
after the death of Bharat, he, along with Bavkubhai Sisodia
had gone to the residence of the accused. At that time, in
the presence of Bavkubhai Sisodia, the accused voluntarily
confessed that he had committed the murder of Raniben.
The witness has further stated that the accused informed
them that he desired to discuss certain matters with them
and accordingly took both of them to the village temple.
There, the accused further confessed that he had also
committed the murder of Bharat. Thereafter, the witness –
Bavkubhai Sisodia and the accused proceeded to the shop
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of Hakubhai Joshi where, in the presence of Hakubhai
Joshi, the accused once again confessed that he had
committed the murders of both Bharat and Raniben. Upon
being questioned as to the motive for committing the said
murders, the accused stated that there were objections
raised to the entries being made in the immovable property
and on account of such objections, had committed the
murders. The witness has further deposed that thereafter
all four of them went and sat beneath an Indian Cherry
tree, where the accused further confessed that he had also
murdered his grandfather – Govabhai Bhurabhai. The
witness has stated that thereafter, on 23.11.1996, he
approached Maliya Hatina Police Station and lodged the
complaint which has been produced on record at Exh. 9.
In his cross-examination, the witness admitted that he
had alone gone to the Police Station to lodge the complaint.
He further stated that the accused was a farm labourer and
was not related to him in any manner. He would
occasionally meet the accused only during festivals and had
no personal relationship with him. He also stated that he
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was not related to Arjanbhai Devarajbhai or Govabhai
Bhurabhai. According to him, he belongs to the Darbar
Community, whereas, the accused and the other persons
belong to the Koli Community and therefore, they would
meet only on festive occasions. The witness further
admitted that he had not gone to the house of Arjanbhai
during the relevant period, however, he had seen the
accused in the company of Hirabhai and Arjanbhai. He also
admitted that he had not attended the funeral rites of
Raniben as he was occupied with his agricultural work. On
returning home, he learnt from Hirabhai – the son of
Raniben, that Raniben had died due to a cardiac arrest. He
further admitted that while lodging the complaint he had
not disclosed that, at the time he visited the house, he had
been informed that Raniben had died of a cardiac arrest.
The witness has further stated that after the accused
confessed to the commission of the offences, about 15 to 20
persons, including Arjanbhai, Malabhai, Govabhai,
Laxmanbhai Devarajbhai and others were present.
Notwithstanding such confession, they permitted the
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accused to return to his house and did not take him to the
Police Station. He further stated that they remained seated
at the temple from about 10:00 p.m. until midnight. He
admitted that no member of the accused’s family was called
during this period. He finally stated that, apart from the
discussion relating to the murders of Raniben and Bharat,
no other conversation had taken place between them.
8.1 PW2 – Hakubhai Parmanandbhai Joshi examined at
Exh. 10 is a neighbour of the accused. In his examination-
in-chief, he has deposed that on 21.11.1996, while he was
near his shop, he met Arjanbhai Devarajbhai who informed
him that Bharat, his son, had left the house and could not
be traced. According to the witness, Bharat remained
untraceable till late in the night. On the following morning,
at about 07:00 a.m., Hirabhai Govabhai came to his
residence and informed him that the dead body of Bharat
was lying in the bed of the river near a stone. The witness
has further stated that he immediately proceeded to the
house of Arjanbhai. Although Arjanbhai was not present,
the other members of the family were present there. He
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accompanied them to the river bank, where he saw the
dead body of Bharat. Thereafter, he went to the Police
Station and informed the police authorities. Pursuant
thereto, the police arrived at the scene of offence, prepared
the inquest panchnama and carried out the other necessary
formalities. The witness has further deposed that on the
following day Rambhai Jeevabhai, Bavkubhai Sisodia and
the accused came to his shop. Rambhai requested him to
listen to what the accused had to say. Accordingly, he made
the accused sit in his shop, whereupon the accused
confessed before him that he had committed the murder of
Bharat. Thereafter, all of them proceeded and sat beneath
an Indian Cherry tree, where the accused further confessed
that he had murdered his grandfather – Govabhai, as well
as his grandmother – Raniben. The accused also confessed
that he had removed the gold earrings and silver prayer
beads belonging to Raniben. The accused further disclosed
that he had committed the offences because his
grandfather was unwilling to affix his signature for the
transfer of the property. The witness has further stated that
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thereafter they went to the house of Arjanbhai and
informed the family members about the confession made by
the accused. Subsequently, Arjanbhai went to the Police
Station and lodged a complaint, whereas the complaint
regarding the death of Raniben was lodged by Rambhai.
In his cross-examination, the witness has stated that
he and Rambhai were close friends. He further admitted
that Rambhai and Bavkubhai Sisodia belonged to the same
community. At the relevant point of time, he was serving as
the President of the Giri Association. He has further stated
that Arjanbhai resided exactly opposite his house and that
he had cordial relations with Arjanbhai by virtue of being
his neighbour. However, he clarified that he had no
relationship whatsoever with either Bavkubhai Sisodia or
Rambhai, except as stated above, and had absolutely no
relationship with the accused. He further deposed that he
had never rendered any assistance to the accused in any
manner. The witness has further stated that the accused
confessed to the murder of Govabhai while they were seated
beneath the Indian Cherry tree. According to him, they
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remained seated there for about one to one and a half
hours. He admitted that despite such confession, they did
not consider it necessary to immediately inform the police.
Thereafter, they went to the house of Arjanbhai along with
the accused, and subsequently each of them returned to
their respective homes.
8.2 PW3 – Bavkubhai Tharanbhai Sisodiya examined at
Exh. 11 has deposed in his examination-in-chief that on
20.11.1996, while he was present in the market, he
received information that the dead body of Bharat – the son
of Arjanbhai was lying on the bank of the river. Upon
receiving such information, he immediately proceeded to
the spot and saw the dead body of Bharat. By that time, the
police had already reached the place of occurrence, drawn
the necessary panchnama and sent the dead body for post-
mortem examination. The witness has further stated that
on the following day, he, along with Rambhai Jeevabhai
went to the house of the accused. Rambhai informed the
accused that Hirabhai had seen him proceeding towards
Wadala Road on a bicycle along with Bharat on the
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previous evening. Thereupon, they questioned the accused
regarding the said circumstance, whereupon the accused
requested them to accompany him to the village temple.
The witness has deposed that he, Rambhai and the accused
thereafter proceeded to the temple, where the accused
confessed that he had committed the murder of Bharat.
Thereafter, they took the accused to the shop of Hakubhai
Joshi where the accused once again confessed before
Hakubhai Joshi that he had committed the said offence.
The witness has further deposed that from the shop, they
all proceeded towards the S.T. Stand Road where they met
Bavkubhai Kamadia. Thereafter, all of them went beneath
an Indian Cherry tree and sat there. At that place, the
accused further confessed that he had committed the
murders of Raniben and Govabhai. The accused also
disclosed that he had removed the gold earrings and the
silver prayer beads belonging to Raniben. The accused
further stated that he had committed the murders because
his grandfather was not giving his father the monetary
share in the property and had refused to affix his signature
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for transferring the property in their names. The witness
has further stated that thereafter they all went to the house
of Arjanbhai and informed him about the confession made
by the accused. Subsequently, Arjanbhai went to the Police
Station, while the witness and the others returned to their
respective homes.
In his cross-examination, the witness has stated that
about 10 to 15 persons were present during the relevant
period. He admitted that the accused had not made any
confession at the house of Arjanbhai. He has further stated
that the accused was neither his friend nor had ever
worked with him. He had never had any conversation with
the accused at any point of time. The witness further
admitted that even after the death of Raniben, he had seen
the accused on several occasions but had never spoken to
him. The witness has further admitted that he was aware
that whenever an offence is committed, the police ought to
be informed at the earliest opportunity. He has further
stated that the confession made beneath the Indian Cherry
tree was in response to the questions put by Hakubhai
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while the remaining persons, including himself, were
merely standing there. According to the witness, they
remained beneath the Indian Cherry tree for about one to
one and a half hours.
8.3 PW4 – Dhansukhbhai Durlabhji examined at Exh. 12
is one of the panch witnesses to the recovery panchnama
produced at Exh. 14, under which the ornaments are
alleged to have been recovered at the instance of the
accused. In his deposition, however, the witness has not
supported the case of the prosecution. He has stated that he
had gone to Maliya Hatina Police Station, where he had seen
the ornaments. According to him, no other person was
present with the police at that time. As the witness did not
support the prosecution case, he was declared hostile and
was subjected to cross-examination by the learned Public
Prosecutor. However, nothing has been elicited in his cross-
examination so as to support the case of the prosecution or
to substantiate the alleged recovery under the panchnama
at Exh. 14.
8.4 PW5 – Rasikbhai Narsibhai Solanki examined at Exh.
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13 is the other panch witness to the recovery panchnama
produced at Exh. 14. In his examination-in-chief, he has
deposed that on 24.11.1996, he was called to the Police
Station, from where the police took him, along with the
other panch witness, in a jeep to the house of the accused.
The accused had accompanied the police party. According to
the witness, the accused thereafter produced the gold
earrings and the silver prayer beads. The said ornaments
were shown to a goldsmith, and thereafter the recovery
panchnama at Exh. 14 was drawn. The witness has
identified the gold earrings as well as the silver prayer beads
before the Court.
In his cross-examination, the witness has stated that
the panchnama was written partly at the house of the
accused and partly at the Police Station.
8.5 PW6 – Jayantilal Parmanand examined at Exh. 15 is
the panch of the panchama of the place of offence which is
produced at Exh. 16. The witness has fully supported the
case of the constitution.
8.6 PW7 – Kathalbhai Godadbhai examined at Exh. 17 is
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the panch witness of the arrest panchnama of the accused
produced at Exh. 18. The witness has supported the case
of the prosecution.
8.7 PW8 – Kalekhan Aalamkham Kureshi examined at
Exh. 21 is the Police Sub-Inspector who recorded the
complaint of the complainant. In his examination-in-chief,
he has deposed that on 23.11.1996, while he was serving as
the Police Sub-Inspector at Maliya Hatina Police Station, the
complainant came to the Police Station and lodged his
complaint. The witness has stated that he registered the
said complaint and thereafter took up the investigation of
the offence. He has further deposed that during the course
of investigation, he drew the panchnama of the place of
offence and recorded the statements of certain witnesses.
According to him, while the accused was in police custody,
the accused voluntarily expressed his willingness to point
out the place where he had concealed the ornaments.
Accordingly, the requisite panchnama was drawn and the
accused led the police party to the place from where the
ornaments were recovered. Upon completion of the
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investigation, he filed the charge-sheet before the competent
Court.
In his cross-examination, the witness has admitted
that prior to the lodging of the complaint dated 23.11.1996,
no complaint had been lodged regarding the alleged theft of
the gold earrings or the silver prayer beads belonging to
Raniben.
8.8 PW9 – Lakhman Govabhai examined at Exh. 24 is the
grandson of the deceased Raniben. In his examination-in-
chief, he has deposed that his grandfather and grandmother
were residing at a short distance from his house. The
witness has identified the gold earrings before the Court and
has stated that the said earrings belonged to his
grandmother. He has also identified the silver prayer beads
(black-beaded necklace) and has deposed that his
grandmother used to wear the said prayer beads regularly
and that the same belonged to her. The witness has further
stated that when the dead body of his grandmother was
lying in the courtyard of the house, he did not notice the
gold earrings or the silver prayer beads on her person.
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In his cross-examination, the witness has admitted
that although he did not see the ornaments on the person of
his deceased grandmother, he neither lodged any complaint
regarding the missing ornaments nor made any enquiry
with any person as to their whereabouts.
9. The case of the prosecution mainly rests on the extra
judicial confession of the accused and it would be
appropriate to refer to the observations made by the
Hon’ble Supreme Court in the case of State of Rajasthan
Vs. Rajaram reported in 2003 LawSuit (SC) 746 in para
18 and 19 which are reproduced as under:
18. Confessions may be divided into two classes, i.e. judicial
and extra-judicial. Judicial confessions are those which are made
before Magistrate or Court in the course of judicial proceedings.
Extra- judicial confessions are those which are made by the party
elsewhere than before a Magistrate or Court. Extra judicial
confessions are generally those made by a party to or before a
private individual which includes even a judicial officer in his
private capacity. It also includes a Magistrate who is not
especially empowered to record confessions under Section 164 of
the Code or a Magistrate so empowered but receiving the
confession at a stage when Section 164 does not apply. As to
extra-judicial confessions, two questions arise: (i) were they made
voluntarily? And (ii) are they true? As the section enacts, a
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confession made by an accused person is irrelevant in a criminal
proceedings, if the making of the confession appears to the Court
to have been caused by any inducement, threat or promise, (1)
having reference to the charge against the accused person, (2)
proceeding from a person in authority, and (3) sufficient, in the
opinion of the Court to give the accused person grounds which
would appear to him reasonable for supposing that by making it
he would gain any advantage or avoid any evil of a temporal
nature in reference to the proceedings against him. It follows that
a confession would be voluntary if it is made by the accused in a
fit state of mind, and if it is not caused by any inducement, threat
or promise which has reference to the charge against him,
proceeding from a person in authority. It would not be
involuntary, if the inducement, (a) does not have reference to the
charge against the accused person, or (b) it does not proceed from
a person in authority; or (c) it is not sufficient, in the opinion of the
Court to give the accused person grounds which would appear to
him reasonable for supposing that, by making it, he would gain
any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him. Whether or not the confession
was voluntary would depend upon the facts and circumstances
of each case, judged in the light of Section 24. The law is clear
that a confession cannot be used against an accused person
unless the Court is satisfied that it was voluntary and 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 or voluntariness of the
confession, the Court may refuse to act upon the confession, even
if it is admissible in evidence One important question, in regard to
which the Court has to be satisfied with is, whether when the
accused made confession, he was a free man or his movements
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were controlled by the police either by themselves or through
some other agency employed by them for the purpose of securing
such a confession. The question whether a confession is
voluntary or not is always a question of fact. All the factors and
all the circumstances of the case, including the important factors
of the time given for reflection, scope of the accused getting a
feeling of threat, inducement or promise, must be considered
before deciding whether the Court is satisfied that its opinion the
impression caused by the inducement, threat or promise, if any,
has been fully removed. A free and voluntary confession is
deserving of highest credit, because it is presumed to flow from
the highest sense of guilt. [See R. v. Warwickshall: (1783) Lesch
263)]. It is not to be conceived that a man would be induced to
make a free and voluntary confession of guilt, so contrary to the
feelings and principles of human nature, if the facts confessed
were not true. Deliberate and voluntary confessions of guilt, if
clearly proved, are among the most effectual proofs in law. An
involuntary confession is one which is not the result of the free
will of the maker of it. So where the statement is made as a result
of the harassment and continuous interrogation for several hours
after the person is treated as an offender and accused, such
statement must be regarded as involuntary. The inducement may
take the form of a promise or of threat, and often the inducement
involves both promise and threat, a promise of forgiveness if
disclosure is made and threat of prosecution if it is not. (See
Woodroffe Evidence, 9th Edn. Page 284). A promise is always
attached to the confession, alternative while a threat is always
attached to the silence-alternative; thus, in the one case the
prisoner is measuring the net advantage of the promise, minus
the general undesirability of a false confession, as against the
present unsatisfactory situation; while in the other case he is
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measuring the net advantages of the present satisfactory
situation, minus the general undesirability of the confession
against the threatened harm. It must be borne in mind that every
inducement, threat or promise does not vitiate a confession. Since
the object of the rule is to exclude only those confessions which
are testimonially untrustworthy, the inducement, threat or
promise must be such as is calculated to lead to an untrue
confession. On the aforesaid analysis the Court is to determine
the absence or presence of inducement, promise etc. or its
sufficiency and how or in what measure it worked on the mind of
the accused. If the inducement, promise or threat is sufficient in
the opinion of the Court, to give the accused person grounds
which would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil, it is
enough to exclude the confession. The words ‘appear to him’ in
the last part of the section refer to the mentality of the accused.
19. 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
the evidence as to confession, like any other evidence, depends
upon the veracity of the witness to whom it has been made. The
value of the evidence as to the confession depends on the
reliability of the witness who gives the evidence. It is not open to
any Court to start with a presumption that extra-judicial
confession is a weak type of evidence. It would depend on the
nature of the circumstances, the time when the confession was
made and the credibility of the witnesses who speak to such a
confession. 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
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whom nothing is brought out which may tend to indicate that he
may have a motive for attributing an untruthful statement to the
accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused is the
perpetrator of the crime and 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.
9.1 The Hon’ble Supreme Court in case of Nikhil Chandra
Mondal vs. State of West Bengal reported in (2023) 6
SCC 605 has observed in para 15 which is as under:
15. It is a settled principle of law that extra-judicial confession is
a weak piece of evidence. It has been held that where an extra-
judicial confession is surrounded by suspicious circumstances,
its credibility becomes doubtful and it loses its importance. It has
further been 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. It has been held that there is no doubt that conviction
can be based on extra-judicial confession, but in the very nature
of things, it is a weak piece of evidence. Reliance in this respect
could be placed on the judgment of this Court in the case of
Sahadevan and Another Vs. State of Tamil Nadu. This
Court, in the said case, after referring to various earlier
judgments on the point, observed thus:
“16. Upon a proper analysis of the abovereferred judgments of
this Court, it will be appropriate to state the principles which
would make an extra-judicial confession an admissible piece ofPage 28 of 33
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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:
(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 evidentiary value if it is supported 2 (2012) 6 SCC 403
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 an overall appreciation of the oral as well as
documentary evidence on record, this Court is of the
considered opinion that the prosecution has failed to
establish the alleged extra-judicial confession as a reliable
and trustworthy piece of evidence. The evidence of PW1 –
Rambhai Jeevabhai, PW2 – Hakubhai Parmanandbhai
Joshi and PW3 – Bavkubhai Tharanbhai Sisodia suffers
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from inherent improbabilities and material circumstances
which render the alleged extra-judicial confession wholly
unsafe to be acted upon. Admittedly, none of the witnesses
had any close relationship or confidence reposed by the
accused in them. On the contrary, the witnesses have
categorically admitted that they had no cordial relations
with the accused and would meet him only occasionally. It
is highly improbable that the accused would voluntarily
confess not only to the murder of Bharat but also to the
murders of Raniben and Govabhai before persons with
whom he shared no relationship of trust or confidence.
Equally significant is the admitted conduct of these
witnesses in permitting the accused to move freely for
nearly one to one and a half hours after such alleged
confession, accompanying him to different places, and
thereafter allowing him to return home instead of
immediately informing the police, despite being fully aware
that such information ought to have been conveyed
forthwith. Such conduct is wholly inconsistent with
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ordinary human behaviour and seriously undermines the
credibility of the prosecution version.
The alleged confession is also not free from material
inconsistencies regarding the place, manner and persons
before whom it was made. The prosecution has further
failed to satisfactorily corroborate the alleged confession
through independent and unimpeachable evidence. The
recovery of ornaments does not inspire confidence in view of
the fact that one of the panch witnesses has not supported
the prosecution, and the Investigating Officer has admitted
that no complaint whatsoever regarding the alleged theft of
the gold earrings or silver prayer beads had been lodged
prior to the registration of the present offence. Even PW9,
the grandson of the deceased Raniben, has admitted that
although he did not find the ornaments on the person of the
deceased, he neither lodged any complaint nor made any
enquiry regarding the same. These circumstances materially
weaken the evidentiary value of the alleged recovery.
It is a settled principle of criminal jurisprudence that
an extra-judicial confession is a weak piece of evidence and
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can form the basis of conviction only when it inspires full
confidence, is voluntary, truthful, made before a person in
whom the accused reposes confidence, and stands
substantially corroborated by other reliable evidence. The
evidence adduced in the present case falls far short of the
aforesaid standard. The learned trial Judge has
meticulously appreciated the entire evidence on record and
has rightly held that the prosecution has failed to prove the
guilt of the accused beyond reasonable doubt.
11. In view of the settled position of law in the decisions of
P. Somaraju (supra), the learned Trial Court has
appreciated the entire evidence in proper perspective and
there does not appear to be any infirmity and illegality in
the impugned judgment and order of acquittal. The learned
Trial Court has appreciated all the evidence and we are of
the considered opinion that the learned Trial Court was
completely justified in acquitting the accused of the charges
leveled against him. The findings recorded by the learned
Trial Court are absolutely just and proper and no illegality
or infirmity has been committed by the learned Trial Court
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and we are in complete agreement with the findings,
ultimate conclusion and the resultant order of acquittal
recorded by the learned Trial Court. We find no reason to
interfere with the impugned judgment and order and the
present appeal is devoid of merits and resultantly, the same
is dismissed.
12. The impugned judgement and order of acquittal
passed by the learned Additional Sessions Judge, Veraval
in Sessions Case No. 239/1999 on 31.12.1999, is hereby
confirmed.
13. 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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