Gujarat High Court
Sujata @ Babita Suresh Ganpatrav Abhang vs State Of Gujarat on 27 June, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 813 of 2014
With
R/CRIMINAL APPEAL NO. 1006 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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SUJATA @ BABITA SURESH GANPATRAV ABHANG
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MRS REKHA H KAPADIA(2246) for the Appellant(s) No. 1
MR LB DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 27/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. Both these appeals arise from the judgment and
order of conviction dated 28.3.2014 passed in Sessions
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Case No.58 of 2011 by the learned 10 th Additional Sessions
Judge, Vadodara convicting both the appellants under
sections 302, 201 and 34 of Indian Penal Code by imposing
life imprisonment and imposed a fine of Rs.1000/-, in
default, to undergo further six months imprisonment and
sentence under section 201 of Indian Penal Code for 7 years
and also imposed a fine of Rs.1000/-, in default, to undergo
further simple imprisonment of six months. Both the
sentences were ordered to run concurrently.
2. Since the challenge in both the captioned appeals
are self-same, both the appeals are heard together and shall
be governed by a common order.
3. The facts of the case in nutshell are as follows :
3.1 It is the case of the prosecution that Sujata @
Babita by hatching conspiracy with Yogesh Murlidhar Gite
with whom she has love affairs paid Rs.30,000/- to one
Shekhar Gnaneshwar Gadekar who is absconding accused
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for eliminating her husband i.e. deceased and at the night of
10.8.2010 both Sujata @ Babita and Yogesh Murlidhar Gite
were in contact on their respective mobile and as a part of
conspiracy, Sujata @ Babita kept open the door of kitchen of
her house through which Sujata @ Babita and Yogesh
Murlidhar Gite entered the house and at the early hours at
4.00 O'clock in the morning and absconding accused
Shekhar Gnaneshwar Gadekar inflicted injuries on the right
hand side of the deceased with the knife which was brought
from Nasik by Yogesh Murlidhar Gite and that Yogesh
Murlidhar Gite also strangulate the face of the deceased
with pillow which culminated into the death of deceased
Suresh Ganpatrao Abhang. Further, Sujata @ Babita and
Yogesh Murlidhar Gite washed blood stained clothes and
that Sujata @ Babita asked Yogesh Murlidhar Gite to
destroy her phone and also paid Rs.5000/- towards
contract killing and she also washed her night gown and
thus committed offence under sections 302, 120-B, 452, 34,
201 of Indian Penal Code read with section 135 of the
Bombay Police Act.
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3.2 After completion of investigation, the chargesheet
against Yogesh Murlidhar Gite and Sujata @ Babita wife of
the deceased Suresh Abhang was filed before the court of
learned Additional Chief Judicial Magistrate which came to
be registered as Criminal Case No.3514 of 2010 wherein
Shekhar Gadekar was shown as absconding. Since the case
was exclusively triable by the court of Sessions, the same
was committed before the learned Sessions Court and was
registered as Sessions Case No.58 of 2011. The charge was
framed against the accused vide Exh.14 which came to be
read over and on being denied the charges and claimed to
be tried.
3.3 In order to bring home the guilt, the prosecution
documentary evidences as under :
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ORAL EVIDENCES :
Sr. Name of witnesses Witnes Exh.
No. s
No.
1 Rajendra Rameshrao Shinde Complainant 1 19
2 Shaileshbhai Babarbhai Soni Panch witness 2 21
3 Laxminarayan Rajaram Reddy Panch witness 3 32
4 Bharatbhai Manubhai Panch witness 4 33
5 Jitendrabhai Ramjibhai Panch witness 5 35
6 Yatinbhai Naginbhai Patel Panch witness 6 43
7 Nayan D.Rawal Panch witness 7 48
8 Ranjit Bhogilal Chauhan Panch witness 8 50
9 Vrushali Sureshbhai Witness 9 53
10 Sulochnaben Rameshrao Shinde Witness 10 45
11 Nainita Sureshbhai Abhang Witness 11 55
12 Rahul Sudambhai Pagare Witness 12 58
13 Dr.Kishor Pramodrai Desai Doctor 13 59
14 Punjabhai Arjunbhai PSO 14 63
15 Vasantlal Vajeshankar Bhatt I.O. 15 67
16 Akhil Mahammad Yusuf Siddiki Witness 16 71
17 Harshvardhan Jaiprakash Banker I.O. 17 73
18 Raghubarsing Mahavirsing I.O. 18 75
Bhadoriya
DOCUMENTARY EVIDENCES :
Sr. Details of Document Exh. Date
No.
1 Complaint of complainant - Rajendra Rameshrao 20 10.08.2010
Shinde
2 Panchnama of scene of offence 22 10.08.2010
3 Inquest Panchnama 34 10.08.2010
4 Panchnama under section 27 36 18.08.2010
5 Panchnama of physical verification of accused 44 16.08.2010
6 Panchnama of recovery of muddamal weapon 51 18.08.2010
7 Postmortem Note and Report 60 10.08.2010
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8 Yadi written for postmortem of dead body and 61 10.08.2010
opinion.
9 Report of PSO for registration of offence 65 10.08.2010
10 Yadi to written inquest of dead body 68 10.08.2010
11 Receipt of taking over of dead body after 69 10.08.2010
postmortem
12 Receipt of handing over dead body for last rituals 70 10.08.2010
13 Panchnama of recovery of clothes of deceased 72 10.08.2010
14 Yadi written to the company for giving CDR of 74 10.08.2010
mobile number from 1.8.2010 to 10.8.2010
15 Yadi and copy of form for getting information of 76 13.08.2010
mobile number 91 - 8980290548
16 Call details of mobile number 8980290548 of 77 1.8.2010 to
accused Sujata being in contact continuously with 10.8.2010
accused Yogesh
17 Call details of mobile number 7698202485 of 78 1.8.2010 to
Vrushali 12.8.2010
18 Call details of mobile number 9637182048 79 1.8.2010 to
20.8.2010
19 Yadi written to Crime Branch for getting call 80 12.08.2010
details of suspect
20 Yadi to Judicial Magistrate for adding sections 81 17.08.2010
452, 34, 201 and 120-B of IPC
21 Yadi written for getting blood sample of accused 82 20.08.2010
22 Yadi written for getting details of mobile numbers 83 20.08.2010
and Form 1 to 3
23 Dispatch note along with Yadi 84 31.08.2010
24 Receipt regarding receipt of muddamal by FSL 85 31.08.2010
3.4 At the end of the trial, after recording the
statement of the accused under section 313 of the CrPC and
hearing the arguments on behalf of the prosecution and the
defence, learned trial Court delivered the judgment and
order, as stated above.
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4. Being aggrieved and dissatisfied with the same,
the appellants have preferred the present appeal.
5. Learned advocate Mr.Pratik Barot appearing for
accused No.1 and learned advocate Ms.R.H.Kapadia
appearing for accused No.2 have jointly contended that the
learned trial Court has committed serious error by
misreading the oral as well as documentary evidence on
record, more particularly, by relying on section 106 of the
Indian Evidence Act 1872. It is further argued that entire
case is based on circumstantial evidence and that the
prosecution has failed to establish the chain of
circumstances pointing guilt towards the present accused.
It is also argued that even the panchnama of place of
offence at Exh.36 which is alleged to be panchnama under
the provisions of section 27 of the Indian Evidence Act and
discovery is also not duly proved so as to link the present
accused persons with the alleged crime. It is further argued
that Exh.51 would also not fall within the scope of section
27 of the Indian Evidence Act. It is further argued that
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Vrushali who is the daughter of the deceased has clearly
stated in the deposition as well as in the cross examination
that confession was made by the accused while the accused
was on remand. Thus, it is argued that such statement
would be clearly hit by section 26 of the Indian Evidence
Act. It is further argued that Sulochna who is sister of the
deceased came to know about involvement of the present
accused as informed by Vrushali - the daughter of the
deceased and therefore, she has no personal knowledge
about the incident and her confession before the police is
hit by section 26 of the Indian Evidence Act. The
information received by Vrushali was informed to her by
Sulochna also cannot be taken into consideration. It is also
further argued that Nainita who is also the daughter of the
deceased has stated in her deposition that her mother had
accepted that she has committed crime while she was in
police station. Learned counsel for the appellants also
drawn attention of this Court towards material
improvements which were also brought on record during the
cross examination of this witness. It is further argued that
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deposition of Rahul at Exh.12 does not carry forward the
case of the prosecution any further. It is also argued that
allegation qua both the accused regarding conspiring on
telephone is also not proved since no certificate of CDR has
been placed on record. It is lastly argued that even the
evidence on record creates serious doubt about involvement
of the present accused persons and it cannot replace the
proof beyond reasonable doubt and therefore, the
prosecution has failed to establish the chain of
circumstances and in such circumstances, shifting the
burden on the accused relying upon section 106 of the
Indian Evidence Act is not warranted and thus, it is prayed
to allow the present appeal.
6. On the other-hand, learned APP Mr.L.B.Dabhi
has argued that the prosecution has proved its case beyond
reasonable doubt by cogent oral and documentary evidence.
It is argued that affair between Yogesh Murlidhar Gite and
Sujata @ Babita is also proved and that conduct of the
accused persons, more particularly, Sujata who was present
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in the house along with her daughter Vrushali on the day of
incident clearly points finger of her involvement and
therefore, learned trial Court has correctly relied upon the
provisions of section 106 of the Indian Evidence Act. It is
further argued that there is no misreading of oral as well as
documentary evidence by the learned trial Court and that
no two views are possible and therefore, learned trial Court
has correctly passed the judgment of conviction. It is argued
that call details are also brought on record which clearly
indicate involvement of the present accused and that blood
group not being decided which reflects in the FSL report
clearly goes to show that washing of clothes by Sujata and
Yogesh Gite is clearly established. Thus, it is argued that
no interference is required at the hands of this Court and
the appeal is required to be rejected.
7. We have perused the Record and Proceedings of
the case and have also given our thoughtful consideration to
the submissions made by learned advocates for the
respective parties.
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8. On perusal of the deposition of PW 1 - Rajendra
Rameshrao Side at Exh.19 who is the complainant and the
deceased is his maternal uncle has stated in his deposition
at paragraph 7 that he knows Yogeshbhai Gite who is
present in the Court and has seen him at number of times
at his maternal uncle's house. The witness has also stated
that her maternal aunt i.e. accused No.2 considered him as
her brother. The witness has further stated that quarrel
used to happen between the deceased Suresh Abhang and
accused No.2 i.e. her maternal aunt because of Yogesh Gite.
The witness has further stated that whenever he used to
come at the residence of his maternal uncle, he used to stay
for 2 to 3 days which was not liked by deceased Suresh
Abhang due to which there use to quarrel. The witness has
also stated that deceased Suresh Abhang also informed
Yogesh Gite not to come at his residence. However, on
perusal of his cross examination, more particularly,
paragraph 10, this witness has admitted that neither in his
complaint nor in his further statement before the police, he
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has stated these facts.
9. PW 2 - Shailesh Babarbhai Soni who has been
examined at Exh.21 and who is panch of panchnama of
scene of incident has turned hostile.
10. PW 3 - Laxminarayan Rajaram Reddy who is also
second panch of Exh.22 i.e. scene of offence who is also
turned hostile coupled with the fact that the Investigating
Officer who has been examined as PW 18 at Exh.75 has not
brought on record the contents of the panchnama of
Exh.22. Thus, the said panchnama is not proved in
accordance with law. Thus, recovery of mobile phones etc.
from the scene of offence is also not proved.
11. PW 4 - Bharatbhai Manibhai who has been
examined at Exh.33 has admitted in his cross examination
that he does not know as to what has been written in the
panchnama at Exh.34 which is inquest panchnama.
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12. PW 5 - Jitendrabhai Ramjibhai who is the second
panch of the said inquest panchnama has turned hostile
and as stated above, the Investigating Officer has not proved
the contents of the said panchnama in his deposition.
Thus, Exh.34 inquest panchnama does not stand proved in
accordance with law.
13. PW 6 - Yatinbhai Naginbhai Patel who has been
examined at Exh.43 who is the panch witness of Exh.44 i.e.
panchnama of physical verification of the accused and
clothes etc. recovered from both the accused persons. This
witness in his cross examination has admitted that the
complainant - Rajendra Side is his friend and at his
instance, he has signed as panch and that on asking as to
why he was required to accompany him to the police
station, it was informed that the police has recovered shirt
etc and therefore his presence is required for signature.
However, considering his entire deposition, the contents of
the panchnama are also not proved and no reliance can be
placed on such panchnama.
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14. Vide Exh.48 PW 7 - Nayan Raval has been
examined and he is the panch of Exh.36. However, in his
cross examination in paragraph 9, the witness has admitted
that it is true that whatever information was given by the
police that how the things had happened. Considering the
entire deposition of this witness, it does not seem to be
reliable.
Evidence under section 27 of the Indian Evidence Act :
15. PW 8 - Ranjit Bhogilal Chauhan has been
examined at Exh.50 who is panch witness of Exh.51 i.e.
panchnama of discovery of weapons used in the alleged
crime. However, nowhere in his entire deposition, he has
stated that the accused wanted to show where he has
hidden the knife with which he has committed crime and
merely stated that the accused brought something like
weapon from near small temple. However, the deposition of
this witness does not satisfy the provisions of section 27 of
the Indian Evidence Act. Similarly, the Investigating Officer
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has also not stated the contents of the panchnama which
fulfill the criteria of section 27 of the Indian Evidence Act
and thus Exh.51 - panchnama of discovery of weapons is
also not proved.
Analysis of evidence under section 27 of Indian
Evidence Act:
16. At this stage, it would be fruitful to refer to the
decision of the Honourable Apex Court in the case of
Ramanand @ Nandlal Bharti versus State of Uttar
Pradesh reported in (2022) SC 843 wherein it is observed
thus :
"52. Section 27 of the Evidence Act, 1872 reads
thus:
"27. How much of information received from
accused may be proved. Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of
any offence, in the custody of a police officer, so
much of such information, whether it amounts to
a confession or not, as relates distinctly to the
fact thereby discovered, may be proved."
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53. If, it is say of the investigating officer that the
accused appellant while in custody on his own
free will and volition made a statement that he
would lead to the place where he had hidden the
weapon of offence along with his blood stained
clothes then the first thing that the investigating
officer should have done was to call for two
independent witnesses at the police station itself.
Once the two independent witnesses arrive at the
police station thereafter in their presence the
accused should be asked to make an appropriate
statement as he may desire in regard to pointing
out the place where he is said to have hidden the
weapon of offence. When the accused while in
custody makes such statement before the two
independent witnesses (panch witnesses) the
exact statement or rather the exact words uttered
by the accused should be incorporated in the first
part of the panchnama that the investigating
officer may draw in accordance with law. This
first part of the panchnama for the purpose of
Section 27 of the Evidence Act is always drawn at
the police station in the presence of the
independent witnesses so as to lend credence that
a particular statement was made by the accused
expressing his willingness on his own free will
and volition to point out the place where the
weapon of offence or any other article used in the
commission of the offence had been hidden. Once
the first part of the panchnama is completed
thereafter the police party along with the accused
and the two independent witnesses (panch
witnesses) would proceed to the particular place
as may be led by the accused. If from that
particular place anything like the weapon of
offence or blood stained clothes or any other
article is discovered then that part of the entire
process would form the second part of the
panchnama. This is how the law expects the
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investigating officer to draw the discovery
panchnama as contemplated under Section 27 of
the Evidence Act. If we read the entire oral
evidence of the investigating officer then it is clear
that the same is deficient in all the aforesaid
relevant aspects of the matter".
17. On perusal of the entire deposition of the
Investigating Officer, it can be noticed that he has not stated
exact words uttered by the accused before him at the police
station. Secondly, the Investigating Officer has failed to
prove the contents of the discovery panchnama and after
the panchas having been declared hostile and not having
uttered the exact words which the accused stated before the
Investigating Officer at the police station lacks its
authorship of concealment of the weapon used in the
alleged crime. Therefore, this Court finds that the evidence
of the discovery and recovery does not constitute the legal
evidence as settled by the Honourable Supreme Court in the
aforesaid judgment and cannot be used against accused.
18. Vrushali daughter of the deceased has been
examined at Exh.53. In her examination in chief, she has
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stated that both her mother as well as Yogesh Gite had
admitted while they were on remand that they have
committed crime. In her cross examination, she has
accepted that it is true that the police informed that these
two accused persons have confessed their crime. It is also
admitted that statements which were not made before the
police and were made for the first time before the Court was
also brought on record which creates serious doubt in
veracity of this witness with regard to the conduct of
accused - Yogesh Gite.
19. Vide Exh.54, PW 10 Sulochnaben Rameshrao
Shinde who is sister of the deceased has been examined.
However, she is not the witness to the alleged incident, but
she was informed by his son that his maternal uncle is
serious and therefore, she went to Manjalpur -
Subodhnagar. She then described as to what was told by
the accused No.2. However, with regard to the alleged
incident, she came to know from the daughter of accused
No.2 that her mother had called two persons from Nasik
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and has given Rs.30000/- for murdering his father and after
having break fast after 1.30 hours in the night had also left
after having a drink. However, specific question was put to
her in the cross examination by the defence lawyer with
regard to the aforesaid fact to which she has stated that
after the statement with regard to the incident was taken by
the police, she had informed this fact to police. However,
she is hearsay witness and does not carry the case of the
prosecution any further.
20. PW 11 Nainita has been examined at Exh.55.
She is also the daughter of the deceased and accused No.2.
In examination-in-chief, the witness has stated that while
the police was investigating the case after sometime, they
had taken her to the police station and had also might
inquired with her. Thereafter, her mother i.e. accused No.2
admitted that yes, she had committed crime. She has
further stated in her examination-in-chief that accused No.1
used to come to their residence and would stay for 14 to 15
days which was not liked by his deceased father. In the
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cross examination, this witness has admitted that the police
had informed that her maternal uncle and Yogesh Gite and
her mother had committed crime of murdering of her father.
Thus, this witness is also of no help and does not take the
case of the prosecution any further.
21. PW 12 Rahul Sudambhai Pagare was examined at
Exh.58 wherein he has stated that mother of Vrushali i.e.
Babita or Sujata had called him and has stated that due to
rain, the door is not opening and requested him to come
and open the door and therefore, this witness went to
Subodhnagar at the place of the accused and on reaching,
he found the compound open and the main door opened.
However, the door of the bed room was locked from outside.
He first opened the room where the ladies were locked and
from there one daughter and mother - accused No.2 came
out and on opening the second door, he show dead body
and therefore, called his son in law i.e. Keyur Shah. The
witness has further stated that since he was having
relationship with Vrushali, he had given simcard bearing
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number 7698202485. However, the simcard was taken by
accused No.2 and on asking to return back the said
simcard, accused No.2 stated to have been lost. Nothing
substantial has come on record except the fact that the
main door was opened, whereas the doors of two rooms
were closed from the outside.
22. PW 13 - Dr.Kishor Pramodrai Desai was
examined at Exh.59 who has stated with regard to the
injuries inflicted upon the deceased. This proves that the
deceased was murdered.
23. Vide Exh.63, PW 14 - Punjabhai Arjunbhai has
been examined who is police witness. This witness has
entered the details in the station diary of the complaint
received from Rajendra Shinde at 18.15 hours on
8.10.2010. Except recording the compliant in the station
diary, this witness has not carried out any other activity
with regard to the alleged offence.
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24. PW 15 - Vasantlal Vajeshankar Bhatt has been
examined at Exh.67. This witness has stated that while he
was on duty on 10.8.2010 at Makarpura Police Station, he
was informed by the PSO of Makarpura Police Station that
one person had telephone informing that Suresh Abhang
has committed suicide at Subodhnagar and on reaching at
the place of incident and on inquiring with Sujata - wife of
Suresh Abhang, she informed that his husband is working
with the Railways at Pratapnagar and before four days, he
was given chargesheet, due to which he was in tension and
also consuming liquor and that on 9th in the night, after
watching TV, his husband went to sleep at 12.30 hours and
she went with her daughter in another room and slept there
and on 10th morning at about 8.30 hours, on checking the
room where her husband was sleeping and on opening the
door, the blood was flowing from his mouth and also found
vomit. This witness had prepared inquest panchnama as
per the instructions from the higher officer with regard to
the accidental death and on receiving the postmortem
report, the Police Inspector of Makarpura Police Station was
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handed over further investigation. Thus, from the
deposition of this witness also, what has been stated by
accused No.2 on reaching the place of incident, has come on
record.
25. Vide Exh.71, PW 16 Akhil Mahammad Yusuf
Siddiqui has been examined. This witness is a person from
where alleged knife was purchased from Nasik. However,
this witness has been declared hostile. As per his say, on
15th the police had come to his shop for investigation. He
was shown knife and was asked as to someone has
purchased the such knife or not, to which this witness
answered that no one has purchased such type of knife
from his shop. This witness has also stated that they had
asked for the bill and therefore, the bill was prepared and
was handed over to the police. Even after cross examination
by the prosecution, nothing specific has come on record.
This factum of knife being purchased from Nasik is not
proved.
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Evidence regarding Call Details Record :
26. PW 17 Harshvardhan Jaiprakash Banker has
been examined at Exh.73. However, this witness is a formal
witness with regard to the investigation and seeking details
from the concerned cellular operator. At this juncture, it is
required to be noted that call details which are placed on
record during the examination of this witness are not
support by any certificate issued under section 65-B of the
Indian Evidence Act and thus, these call details are also not
proved in accordance with law.
Analysis of evidence under Section 65-B of the Indian
Evidence Act :
27. Vide Exh.18, Raghubarsingh Mahavirsingh
Bhadoriya has been examined at Exh.75 who is the
Investigating Officer of the alleged crime. On objection by
the defence side for exhibiting call details, they were
exhibited keeping in view the judgment delivered by the
Honourable Supreme Court in the case of Bipin Shantilal
Panchal Vs State of Gujarat and the said objections were
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decided while passing the impugned judgment.
At this stage, it would be fruitful to refer to the
decision of the Honourable Apex Court in the case of Arjun
Panditrao Khotkar Vs Kailash Kushanrao Gorantyal,
reported in AIR 2020 SC 4908 wherein while dealing with
the interpretation of Section 65-B of the Indian Evidence Act
1872, it is held as under:
"72. The reference is thus answered by stating
that:
(a) Anvar P.V. (supra), as clarified by us
hereinabove, is the law declared by this Court on
Section 65B of the Evidence Act. The judgment in
Tomaso Bruno (supra), being per incuriam, does
not lay down the law correctly. Also, the judgment
in SLP (Crl.) No. 9431 of 2011 reported as Shafhi
Mohammad (supra) and the judgment dated
03.04.2018 reported as (2018) 5 SCC 311, do not
lay down the law correctly and are therefore
overruled.
(b) The clarification referred to above is that the
required certificate under Section 65B(4) is
unnecessary if the original document itself is
produced. This can be done by the owner of a
laptop computer, computer tablet or even a
mobile phone, by stepping into the witness box
and proving that the concerned device, on which
the original information is first stored, is owned
and/or operated by him. In cases where the
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"computer" happens to be a part of a "computer
system" or "computer network" and it becomes
impossible to physically bring such system or
network to the Court, then the only means of
providing information contained in such
electronic record can be in accordance with
Section 65B(1), together with the requisite
certificate under Section 65B(4). The last
sentence in Anvar P.V. (supra) which reads as
"...if an electronic record as such is used as
primary evidence under Section 62 of the
Evidence Act..." is thus clarified; it is to be read
without the words "under Section 62 of the
Evidence Act...." With this clarification, the law
stated in paragraph 24 of Anvar P.V. (supra) does
not need to be revisited.
(c) The general directions issued in paragraph 62
(supra) shall hereafter be followed by courts that
deal with electronic evidence, to ensure their
preservation, and production of certificate at the
appropriate stage. These directions shall apply in
all proceedings, till rules and directions under
Section 67C of the Information Technology Act
and data retention conditions are formulated for
compliance by telecom and internet service
providers.
(d) Appropriate rules and directions should be
framed in exercise of the Information Technology
Act, by exercising powers such as in Section 67C,
and also framing suitable rules for the retention
of data involved in trial of offences, their
segregation, rules of chain of custody, stamping
and record maintenance, for the entire duration
of trials and appeals, and also in regard to
preservation of the meta data to avoid corruption.
Likewise, appropriate rules for preservation,
retrieval and production of electronic record,
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should be framed as indicated earlier, after
considering the report of the Committee
constituted by the Chief Justice's Conference in
April, 2016."
Therefore, in view of the judgment, more particularly, clause
(b) of paragraph 72, computer system / computer network
was not possible to be physically brought before the Court,
the only means of providing information containing such
electronic evidence, in the present case, call details record
can be only in accordance with section 65(B)(1) together
with the requisite certificate under Section 65B(4) of the
Indian Evidence Act. In absence of any such certificate,
print out of call details record from the computer system /
computer network cannot be legally looked into and as
such, it cannot be said that the prosecution has proved the
evidence with regard to call details in accordance with law.
Analysis of evidence under section 25 of the Indian
Evidence Act:
28. On considering the aforesaid oral as well as
documentary evidences and also considering the reasonings
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given by the learned trial Judge, it transpires that the
learned trial Judge in paragraph 24 of the impugned
judgment has held to the effect that while the police was
inquiring with the accused No.2 with regard to the alleged
incident, accidental death report at Exh.65 was lodged by
accused No.2 and accused No.2 had informed the details
before she was arraigned as accused and therefore, has held
that any such information disclosed before she was
arraigned as accused is not hit by sections 25 and 26 of the
Indian Evidence Act.
At this juncture, it would be profitable to refer to
the decision in the case of Aghnoo Nagesia Vs State of
Bihar, reported in 1966 SCR (1) 134 wherein it was
observed thus :
"xxxx xxxx xxxx
The terms of S.25 are imperative. A confession
made to a police officer under any circumstances
is not admissible in evidence against the accused.
It covers a confession made when he was free and
not in police custody, as also a confession made
before any investigation has begun. The
expression "accused of any offence" covers a
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person accused of an offence at the trial whether
or not he was accused of the offence when he
made the confession."
In view of the aforesaid settled principles of law,
even if the accused No.2 had made confession before the
police which is also stated by the Investigating Officer in his
deposition that, tactfully he had inquired and therefore,
accused No.2 made confession before him would not be
admissible in terms of section 25 of the Indian Evidence Act
even if she was accused in the offence or not when such
confession was made.
Analysis regarding suspicion :
29. It is also required to be noted that at the most, it
could be said that strong suspicion is pointing towards the
accused persons. However, as held by the Honourble
Supreme Court in the case of Sujit Biswas vs. State of
Assam reported in AIR 2013 SC 3817 suspicion,
howsoever strong, cannot substitute the proof and
conviction is not permissible only on the basis of the
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suspicion. It is held thus in para 6:
"6. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large
difference between something that "may be"
proved, and something that "will be proved". In a
criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of
proof. This is for the reason that the mental
distance between "may be" and "must be" is quite
large and divides vague conjectures from sure
conclusions. In a criminal case, the court has a
duty to ensure that mere conjectures or suspicion
do not take the place of legal proof. The large
distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an accused is condemned as
a convict, and the basic and golden rule must be
applied. In such cases, while keeping in mind the
distance between "may be" true and "must be"
true, the court must maintain the vital distance
between mere conjectures and sure conclusions
to be arrived at, on the touchstone of
dispassionate judicial scrutiny, based upon a
complete and comprehensive appreciation of all
features of the case, as well as the quality and
credibility of the evidence brought on record. The
court must ensure, that miscarriage of justice is
avoided, and if the facts and circumstances of a
case so demand, then the benefit of doubt must
be given to the accused, keeping in mind that a
reasonable doubt is not an imaginary, trivial or a
merely probable doubt, but a fair doubt that is
based upon reason and common sense. (Vide
Hanumant Govind Nargundkar v. State of M.P.,
(1952) 2 SCC 71, State v. Mahender Singh Dahiya
(2011) 3 SCC 109 and Ramesh Harijan v. State of
U.P. (2012) 5 SCC 777."
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Analysis of evidence under section 106 of Indian
Evidence Act:
30. The learned trial Court has also relied upon
section 106 of the Indian Evidence Act and has passed the
impugned judgment. It would be profitable to refer to the
decision in the case of Shambhu Nath Mehra v. The State
of Ajmer [AIR 1956 SC 404: 1956 Cri LJ 794] the
Honourable Apex Court has stated the legal principle thus:
"11. This lays down the general rule that in a
criminal case the burden of proof is on the
prosecution and Section 106 is certainly not
intended to relieve it of that duty. On the
contrary, it is designed to meet certain
exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the
prosecution to establish facts which are
"especially" within the knowledge of the accused
and which he could prove without difficulty or
inconvenience. The word "especially" stresses
that. It means facts that are pre-eminently or
exceptionally within his knowledge."
In view of the aforesaid settled principles of law,
initial burden of proof by the prosecution has not been
discharged and no conviction merely on the reliance of
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section 106 of the Indian Evidence Act can be passed
against the accused persons.
Analysis of circumstantial evidence :
31. The present case is based on circumstantial
evidence. It is settled law that in a case based on
circumstantial evidence, the prosecution is obliged to prove
each circumstance, taken cumulatively to form a chain so
complete that there is no escape from the conclusion that
within all human probabilities, crime was committed by the
accused and none else. Further, the facts so proved should
unerringly point towards the guilt of the accused. The
Honourable Supreme Court in a celebrated judgment in
Sharad Birdhichand Sarda vs. State of Maharashtra
reported in (1984) 4 SCC 116 has set down the golden
rules in the cases basing circumstantial evidence which is
to be proved by the prosecution, as under :
(i) That chain of evidence is complete;
(ii) Circumstances relied upon by prosecution
should be conclusive in nature;
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(iii) Fact established should be consistent only
with the hypothesis of the guilt of accused;
(iv) Circumstances relied upon should only be
consistent with the guilt of the accused;
(v) Circumstances relied upon should exclude
every possible hypothesis except the one to be
proved.
In view of the above stated facts and
circumstances of the present case, chain of evidence is not
completed in all aspects and it is not conclusive in nature
and that the fact of committing the crime is not established
and is not consistent with the hypothesis of the guilt of the
accused and does not exclude every possible hypothesis
except one to be proved.
32. Thus, on overall reappreciation of the evidences
both oral and documentary, this Court is of the considered
view that impugned judgment and order passed by the
learned 10th Additional Sessions Judge, Vadodara dated
28.3.2014 in Sessions Case No.58 of 2011 is required to be
set aside and accordingly, it is set aside. The accused are
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given the benefit of doubt for the offence under sections
302, 201 read with section 120-B and 34 of Indian Penal
Code and the accused are acquitted of the charges leveled
against them. The accused be set at liberty if in jail and if
not required in any other case. Record and Proceedings be
sent back forthwith.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
H.M. PATHAN
