[Cites 27, Cited by 0]
Gujarat High Court
State Of Gujarat vs Baldevbhai Budhaji Dhulaji Chauhan ... on 10 April, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL CONFIRMATION CASE NO. 2 of 2024
With
R/CRIMINAL APPEAL NO. 2812 of 2024
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2025
In R/CRIMINAL APPEAL NO. 2812 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE R. T. VACHHANI Sd/-
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Approved for Reporting Yes No
Yes
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STATE OF GUJARAT
Versus
BALDEVBHAI BUDHAJI DHULAJI CHAUHAN (THAKOR)
==========================================================
Appearance:
MR L B DABHI, APP for the Appellant(s) No. 1
MR NIRAD D BUCH(4000) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 10/04/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole accused
Baldevbhai Budhaji Dhulaji Chauhan (Thakor), under
Section 374(2) of the Code of Criminal Procedure, 1973, is
directed against the judgment of conviction and order of
sentence dated 10.09.2024 passed by the learned
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Additional City Sessions Judge, Ahmedabad in Sessions
Case No.467 of 2017 by which the appellant-accused has
been convicted under Sections 302 and 201 of the Indian
Penal Code and capital punishment.
The break-up of sentence and fine amount is as follows:
Conviction under Punishment Fine In default of fine
Section
S.302 of IPC Capital Rs.5,000/- R.I. of 2 months
Punishment
S.201 of IPC R.I. of 2 years Rs.1,000/- R.I. of 1 month
2. The death reference (2 of 2024) has come up before
this Court for the conference of death sentence.
3. As the death reference as well as the appeal both
arise out of the same judgment and order, they have been
heard and are being decided together.
Factual aspects:
4. The case of the prosecution leading to the conviction
of the appellant accused is as follows:
4.1 The appellant accused was charged and convicted for
the offence of double murder and causing disappearance
of the evidence.
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4.2 An FIR being I-C.R.No.135 of 2017, dated 06.06.2017
for the offences punishable under Sections 302 and 201 of
the IPC came to be registered with Odhav Police Station,
Ahmedabad against unidentified persons for killing two
persons viz. Vipulbhai and Kanchanben who happened to
be a son and mother.
4.3 In the year 2017, deceased Kanchanben and
Vipulbhai were residing in a rented house no.D-147,
situated at Belapark Society, Odhav, Ahmedabad.
Deceased Vipulbhai married to one Sujata (PW:30), who
originally belongs to the State Maharashtra and was
having a daughter Vaishnavi borne out from her earlier
marriage.
4.4 The appellant-accused was compounder of the
hospital viz. Shriram Hospital situated in the Odhav area.
Deceased Kanchanben was used to visit Shriram Hospital
for age related treatment, accompanied by witness Sujata
-PW:30, as a result, the appellant accused came into
contact with witness Sujata. After exchanging their cell
number, they got acquainted and they were active on
social media. In nutshell, the wife of the deceased
Vipulbhai, had an affair with the appellant accused. The
deceased husband and mother in law Kanchanben
opposed the said relationship and the witness Sujata was
asked to leave the house, as a result, she went to house of
her sister at Maharashtra. The appellant accused who
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used to visit the house of Sujata, had a grudge against the
mother in law Kanchanben on the aspect of sending Sujata
to Maharashtra at her parental home. In such
circumstances, according to the prosecution case on
03.06.2017 in the evening hours, the appellant accused
came to house of Sujata where, the deceased Kanchanben
found alone in the house. The deceased Vipul husband of
Sujata was employed nearby the factory and he was not at
home. The appellant accused raising dispute with the
deceased Kanchanben about the sending Sujata at
parental home, entered into heated exchange of words
with the deceased and then, inflicted a fatal blows on the
head of the deceased Kanchanben with weapon axe. After
the incident, deceased Vipul entered into house and saw
that her mother was lying in pool of blood and beside the
death body of mother, the appellant was trying to wrap
the dead body into polythene bag. The deceased Vipul
objected the act of the appellant of killing her mother. The
appellant accused got angry and killed the deceased Vipul
by inflicting axe blows on his head.
4.5 It is the further case of the prosecution that the
appellant accused after killing two persons stayed in the
same house upto early morning i.e. 03:00 o'clock and
wrapped the dead bodies in the polythene bags and kept
it nearby the washroom. The appellant thereafter, tried to
remove the bloodstained from the wall and floor of the
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house with the help of knife. He had also changed his
bloodstained clothes and wore clothes of the deceased
Vipulbhai allegedly took out from his cupboard. The
accused appellant took with him a weapon axe and knife
as well as his bloodstained clothes and left the house at
the place of the incident in the early morning at about 3 to
4 a.m. The accused straightway went to Shriram Hospital
where he was employed as compounder. The weapon axe
and knife were being hidden in the electric box of the
hospital. The bloodstained clothes were being burn by the
accused near Shriram Hospital.
4.6 It is the further case of the prosecution that after
three four days of the incident i.e. on 06.06.2017, the one
of the neighbour Mr.Ashok Prajapati PW:14 experienced a
bad smell from the house D-147 where the dead bodies
were lying in a polythene bags. The witness PW:14
informed the owner of the house Divyesh Modi - PW:23.
The one of the neighbours Malkesh Shah PW:20 informed
the police by dialing 100.
4.7 It is the further case of the prosecution that the dead
bodies of Vipulbhai and Kanchanben in a decomposed
condition discovered and found and accordingly, an FIR
against unidentified persons came to be filed by Divyesh
Modi PW:23. Upon registration of the offence, the I.O.
PW:36 N.L. Desai, during the course of investigation, sent
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the dead bodies for postmortem, recorded the statement
of the witnesses and on next day i.e. 07.06.2017, upon
specific input, the appellant accused came to be arrested
and was remanded to the police custody. The accused
during the police custody, voluntarily in the presence of
panchas, pointed out the place of offence, and during the
reconstruction, panchnama of crime scene, he narrated
the entire sequence of the offence. The I.O. during the
course of investigation, discovered and recovered the
weapon axe and knife at the instance of the accused in
terms of Section 27 of the Evidence Act. The I.O. also
obtained the CCTV footages of Shriram Hospital, to prove
the conduct of the accused after the incident. In such
circumstances, after receiving the report of the FSL and
upon completion of the investigation, the I.O. filed the
chargesheet against the appellant accused for the offence
of murder punishable under Section 302 IPC and the act of
causing disappearance of evidence punishable under
Section 201 of the IPC before the Judicial Magistrate Court,
Ahmedabad.
5. As the case was exclusively triable by the Court of
Sessions, the same was committed to the City Sessions
Court at Ahmedabad.
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6. The City Sessions Court, Ahmedabad framed the
charges against the appellant accused which he did not
admit the charge and claimed to be tried.
7. The prosecution, in order to prove the charge,
adduced the following oral as well as documentary
evidence in support of its case:
Oral evidence
PW 1 - Exh.10 Padminiben Hasmukhbhai Sharma, panch witness
PW 2 - Exh.15 Kumuchandra Okhabhai Khatri, panch witness
PW 3 - Exh.18 Vasant Pratapji Prajapati, panch witness
PW 4 - Exh.20 Jagdishbhai Ramshankarbhai Joshi, panch witness
PW 5 - Exh.32 Dhhirubhai Ramubhai Bharwad, panch witness
PW 6 - Exh.34 Paraskumar Narayanbhai Mali, panch witness
PW 7 - Exh.37 Ashish Jagdishbhai Luhar, panch witness
PW 8 - Exh.42 Chandresh Vinodray Panchasra, panch witness
PW 9 - Exh.47 Arvindbhai Himmatsinh Parmar, panch witness
PW 10 - Exh.51 Vijaybhai Dineshbhai Jaiswal, panch witness
PW 11 - Exh.54 Kalyanbhai Kamarbhai Sadu, panch witness
PW 12 - Exh.56 Vishnubhai Himmatbhai Thakor, panch witness
PW 13 - Exh.60 Suresh Heeralal Tank, panch witness
PW 14 - Exh.68 Ashok Pratapji Prajapati
PW 15 - Exh.70 Sampatbhai Punaji Thakor, panch witness
PW 16 - Exh.72 Amit Ganeshbhai Rana
PW 17 - Exh.74 Amarsingh Kashmirsingh Bharti
PW 18 - Exh.76 Hobiben Pratapji Prajapati
PW 19 - Exh.78 Vimlaben Amarsingh Bbharti
PW 20 - Exh.80 Malkeshbhai Champaklal Shah
PW 21 - Exh.82 Dr. Yogeshbhai Ramchandra Jain
PW 22 - Exh.84 Rajendrakumar Natwarlal Patel
PW 23 - Exh.86 Divyeshbhai Jayantibhai Modi
PW 24 - Exh.89 Nayankumar Suresshbhai Modi
PW 25 - Exh.92 Priyavadan Arvindbhai Modi
PW 26 - Exh.94 Krishnaben Nayanbhai Modi
PW 27 - Exh.96 Dr. Mustaq Ahmed Gulamrasool Sheikh, pm doctor
PW 28 - Exh.100 Dr. Mustaq Ahmed Gulamrasool Shiekh, pm doctor
PW 29 - Exh.103 Kuldeepkumar Bhagirath Choudhari
PW 30 - Exh.106 Sujata Manatesh Kulkarni
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PW 31 - Exh.115 Ranjitsinh Nanjibhai Khant, IO
PW 32 - Exh.116 Kashiben Bharatsinh Rathod, PSO
PW 33 - Exh.120 Jayeshbhai Kodarbhai Patel
PW 34 - Exh.123 Amarsinh Revabhai Gohil
PW 35 - Exh.124 Pradeepsinh Hatisinh Chouhan
PW 36 - Exh.128 Narayanbhai Lalbhai Desai, IO
PW 37 - Exh.152 Mrudulbhai Upendrabhai Bhatt
PW 38 - Exh.165 Hitesh Jayantilal Trivedi
Documentary evidence
Exh.12 Inquest panchnama of Kanchanben
Exh.17 Inquest panchnama of Vipulbhai
Exh.22 Panchnama of place of offence
Exh.22-30 Mudammal article no. 1-8 panch slip
Exh.36 Panchnama of clothes and articles recovered from the body of
deceased
Exh.39-41 Mudammal article no. 24(1),(2),(3) panch slips
Exh.44 Panchnama of medical sample collected from accused during
medical examination
Exh.49 Panchnama of stating of facts and actions of accused as seen by
the panch witnesses
Exh.53 Arrest panchnama
Exh.58 Panchnama of recovering of cctv footage of Shriram Hospital
Exh.59 Mudammal article no.32 panch slip
Exh.62 Panchnama of recovery of weapons
Exh.63-67 Mudammal article no.27-31 panch slip
Exh.88 Original complaint
Exh.98 Police yadi for pm report of Kanchanben
Exh.99 Pm note of deceased Kanchanben Sureshbhai Modi
Exh.101 Police yadi for pm report of Vipulbhai
Exh.102 Pm note of deceased Vipulbhai Sureshbhai Modi
Exh.117 Police report
Exh.118 Special report by PSO to police commissioner
Exh.129 FSL mobile van report
Exh.130 POlice yadi to fingerprints expert
Exh.131 Police yadi to FSL
Exh.132 Mudammal forwarding notes
Exh.133 Receipt by FSL
Exh.134-135 Receipt by FSL
Exh.136 FSL letter and report
Exh.137 Copy of announcement of ban on weapons
Exh.138 Police yadi for map
Exh.139 FSL letter
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Exh.140 FSL report
Exh.141 Serological report
Exh.142 FSL letter
Exh.143 FSL physics department report
Exh.149 Call record details report of accused
Exh.153 DoT guidelines dated 21-12-2021
Exh.154 Mobile sim no.93582609 subscribers data record
Exh.166 FSL enhanced photos
8. After closure of the prosecution evidence, the
statement of the accused appellant under Section 313 of
Cr.P.C. was recorded to which he stated that he is
innocent and he has been falsely implicated. He has
further stated that, the prosecution failed to prove the
facts about on which date and time, the death was
occurred. He has further stated that the real culprits of the
offence have not been arrested in the present case by the
police. He has further stated that it could not be possible
to kill two persons at a time by a single person. He has
lastly stated that his presence at the place is not proved
and established.
9. Though opportunity was extended, no oral evidence
being adduced by the appellant accused.
10. Trial Court's Findings:
After hearing the parties and upon appreciation of
the material evidence, the accused held guilty for the
offence of murder and awarded death sentence. While
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recording the conviction and sentence, the trial Court
relied upon the following circumstances as proved:
(i) the appellant accused had an affair with the wife
of deceased Sujata and he was used to come to
the house of deceased Vipulbhai and on this
aspect, there was matrimonial dispute between
the husband and wife;
(ii) on 03.06.2017, at about 7-00 pm, the appellant
accused entered into house known as 'D-147', Bela
Park Society, Ambika Nagar, Odhav, Ahmedabad,
and raised dispute with the deceased Kanchanben
with respect to sending Sujata to her parental
home, killed the deceased with weapon axe.
(iii) on the same day at about 8-00 o'clock when
deceased Vipul entered into his house, he saw her
mother lying in pool of blood with the severe head
injuries and there was verbal spat between
deceased Vipul and appellant accused, as a result,
the deceased Vipul killed by the appellant accused
by inflicting several axe blows on his head.
(iv) the appellant accused after the incident stayed in
the house upto late night and at about 3-00 am.
He wrapped both the dead bodies in the plastic
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bag and put the dead bodies near washroom of the
house. The appellant accused thereafter put the
weapons axe and knife as well as blood stained
cloths in a plastic bag and with the plastic bag, he
left the house in the early morning and at that
time, the neighbour Amit Rana - PW-16 saw him.)
(v) The appellant accused thereafter, went to the Shri
Ram Hospital situated in the Odhav area, nearby
place of incident, where he was employed as
compounder. He managed to hide the weapons in
the electric box of the hospital and burnt the
cloths nearby the hospital.
11. Being dissatisfied and aggrieved wit the judgment of
conviction and order of death sentence, the appellant-
accused has come up with the present appeal.
12. Evidence adduced by the prosecution :
(1) Dr. Mustak Ahmed Shaikh (PW-27):
This witness being a Medical Officer, Civil Hospital,
Ahmedabad, had conducted Postmortum on the body of
the deceased Vipul Modi and Kanchanben Modi. He
received both the dead bodies in a blue and gray colour
plastic sheets tide with orange plastic string and both the
dead bodies found in a decomposed condition. The doctor
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has first examined deceased Kanchanben and during the
examination, he noticed the following internal and
external injuries mentioned in the PM report Exh. 99.
Deceased Kanchanben
External Injuries
(1) One chop wound of size 4X1.5cm present over Lt.
parietal region of head in sagittal plane & scalp deep
& brawnish red in colour & 5cm above from Lt ear
(2) One chop wound of size 4x1.5 cm & scalp deep
present over Rt. posterior pavietal region of head in
the coronal plane 10 cm above from Rt. ear & 2 cm
Rt. To midline & brawnish - red in colour.
(3) One chop wound of size 4x1.5 cm & scalp deep
present over Rt. Frontal region of head in coronal
plane 6 cm above from Rt. Eyebrow & 5 cm away
from midline & brawnish red in colour.
(4) One chop wound of size 2x0.5 cm & scalp deep
present over middle of pavietal region in the coronal
plane in midline, 12 cm above from illegible &
brawnish red in colour.
(5) contusion of size 10x10 cm present over Rt. Side of
head involving Rt. Frontal temporal & xyzometric
region & black brawn in colour.
(6) Contusion of size 6x5 cm present over Lt.fronts
temporal region of head 7 black brawn in colour.
Internal injuries
1. Under skin contusion present over the whole head.
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2. One 8 cm Rt. Temporal vertical lineation present 4
cm posterior to Rt. zygometic inch & 10 cm right to
parietal lineation adjoining the above going posterior
medially towards midline.
3. Illegible intact Brain is Liquified & converted into
Reddish greyish paste like material mixed with blood
clots.
According to opinion of the doctor, the cause of
death of Kanchanben was shock and hemorrage due to
head injury. He also opined that, the injuries could be
possible with the seized weapon axe. It is further opined
that the injuries referred were sufficient in ordinary course
of nature to cause the death.
On the same day, after completion of PM of
Kanchanben, the witness has also conducted the PM on
the body of deceased Vipulbhai. The witness has noticed
the following internal and external injuries mentioned in
the PM report Exh. 102.
Deceasd Vipulbhai
External injuries
(1) One chop wound of size 6X1.5cm scalp deep
present over the Rt pavietal region of head in the
sagittal plane, 13 cm above from Rt.ear & 1 cm Rt.
To midline & brawnish red in colour.
(2) One chop wound of size 4x1.5 cm & scalp deep
present over Lt pavietal region of head in sagittal
plane 12 cm above from Lt.ear & 3 cm Lt. to midline
& brawnish - red in colour.
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(3) One chop wound of size 4x1.5 cm present over the
occipital region of head over midline in the coronal
plane & 5 cm above from external occipital
protuberance brawnish red colour.
Internal injuries
1. Under skin contusion present over the whole head.
2. Multiple communted present over Rt. Fronto-pavietal
& Lt pavietal bone with multiple fragements.
3. Dura tear over Rt. & Lt parietal lobe.
4. Brain is liquified & converted into Reddish greyish
paste like material mixed with blood clots.
According to opinion of the doctor, the cause of
death of Vipulbhai was shock and hemorrhage due to
head injury. He also opined that, the injuries could be
possible with the seized weapon axe. It is further opined
that the injuries referred were sufficient in ordinary course
of nature to cause the death.
In the cross-examination, the witness has stated that,
the death was caused before 3 to 5 days from 07.06.2017.
The Doctor has also admitted that the axe blade had no
edge. It is denied that the injuries mentioned in both the
PM reports could not be possible by the weapon axe.
(2) In order to prove the inquest panchnama of both the
deceased (Exh. 12 & 17), the witnesses Padminiben
Sharma PW-1 and Kumudchandra Khatri PW-2 have been
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examined. So far as panchnama Exh. 12 is concerned, the
witness Padmini Sharma has stated the contents of
inquest panchnama in her deposition, whereas, PW-2 of
another inquest panchnama did not have supported the
case of the prosecution and another witness of the said
panchnama Vasant Prajapati PW-3 has supported the case
of the prosecution.
(3) Jagdish Joshi (PW.4):
This witness was cited as a panch witness of the
panchnama of scene of offence (Exh.22). This witness has
been declared hostile, as he did not have supported to the
case of the prosecution. The another witness of the said
panchnama namely Dhirubhai Bharwad, PW-5 has also not
supported to the case of the prosecution.
(4) The appellant accused was arrested on 07.06.2017
and thereafter he was referred to Civil Hospital for medical
examination and his blood sample was collected by the
doctor concerned and same had been seized by way of
panchnama Exh. 44. Both the panch witnesses have not
supported to the case of the prosecution.
(5) Arvind Himmatsinh Parmar (PW-9):
This witness was the panch witness of the
reconstruction panchnama of scene of crime (Exh. 49). It
is the case of the prosecution that during the police
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remand, the accused appellant voluntarily pointed out the
place of offence and under the reconstruction of scene of
crime, he had narrated and confessed how he had killed
deceased Kanchanben and Vipulbhai. The entire
confession being incorporated in the panchnama Exh. 49
by the IO. However, the this witness i.e. Arvind Parmar has
not supported to the case of the prosecution and he has
been declared hostile and during the cross-examination,
he has not admitted the contents of the panchnama and
confession of the accused.
(6) Vishnubhai Thakore (PW-12) & Sampatji Punaji
Thakore (PW-15):
On 10.06.2017, during the investigation the IO had
took visit of Shri Ram Hospital, run by Dr. Yogesh Jain, as
at relevant time the appellant accused was serving as a
Compounder in the hospital and after the incident, in the
early morning, he came to the hospital and hide the
weapons and destroyed the cloths and the entire act on
the part of the accused came to be recorded in the CC TV
footage of the hospital. The said CC TV footage being
transmitted in one pen drive and was being produced by
Dr. Yogesh Jain (PW-21) and the IO seized the said pen
drive in presence of independent panchas by drawing the
panchnama (Exh. 58). Both witnesses have not supported
to the case of the prosecution and in the cross-
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examination, they have denied the contents of the
panchnama and recovery of pen drive.
(7) Suresh Hiralal Tank (PW-13):
This witness was cited as a panch witness of
panchnama (Exh. 62). This panchnama is the discovery
and recovery of the weapon axe, knife and burnt cloths.
According to prosecution case, on 08.06.2017, when the
accused was in police custody, had voluntarily made a
disclosure statement that he intend to point out the place
where he had hide the weapon axe and knife and the
place where he had burnt the cloths. After drawing the
preliminary panchnama under Section 27, the appellant
accused in the presence of two independent witnesses, on
the basis of discovery statement, pointed out the place
where he had kept the weapons and the place where he
had burnt the clothes. On the basis of his disclosure
statement, the police discovery and recovered the weapon
axe and knife from the electric box of Shri Ram Hospital
and half burnt clothes nearby the hospital. However, fact
remains that the witness Suresh Hirabhai in his chief-
examination, has not stated the contents of first part of
the discovery panchnama nor stated the later part of the
panchnama. The witness in his chief-examination, has
identified the weapon axe and knife allegedly shown him
from the case records.
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(8) Ashok Pratapji Prajapati (PW-14):
This witness is the neighbour of deceased Vipulbhai
and Kanchanben. This witness found foul smell from the
house of the deceased and had informed the owner of the
house namely Divyesh Modi and after half an hour, the
people from the vicinity gathered near the house and the
Odhav Police came at the place of offence. The witness in
his chief-examination has stated that how the police found
decomposed dead body of Vipulbhai and Kanchanben
from the house. On the aspect of extra marital affairs of
wife of Vipulbhai, the witness has stated that he came to
know from the people gathered over there.
(9) Amit Rana (PW-16):
This witness is the neighbour of deceased Vipulbhai
and his house number is D-149, whereas the house
number of deceased is D-147. According to prosecution
case, on 04.06.2017, in the early morning at about 4-00
o'clock, when he wake up for urinal, he saw the appellant
accused, leaving the house of the deceased Vipulbhai
carrying with him a plastic bag. The police has recorded
his statement, wherein, he disclosed the said facts before
the police. However, when he stepped into witness box, he
did not supported to the case of the prosecution, as a
result, he has been declared hostile and in the cross-
examination, he has not admitted the contents of the
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police statement. In nutshell, the witness has not
supported on the material aspect of the prosecution case.
In the cross-examination, the witness has admitted that on
03.06.2017, he had not heard any screaming from the
house of the deceased.
(10) Amarsingh Bharti (PW-17), Hobbyben
Prajapati (PW-18), Vimlaben Bharti (PW-19),
Malkeshbhai Champaklal Shah (PW-20):
All these witnesses being neighbours of the
deceased, were being examined to prove the issue of
extra marital affairs and presence of the accused at the
scene of offence. The witnesses have not thrown any light
on the aspect of extra marital affairs and presence of the
accused.
(11) Dr. Yogesh Ramchandra Jain (PW-21):
This witness has been examined to prove the facts
that the appellant accused at the time of incident was
working as a compounder in the Shriram Hospital. Witness
is the owner of the hospital and has admitted that, the
appellant was working in the hospital as a daily wager. He
also identified the accused in the court. He has stated in
the chief-examination that, the pen driver containing the
CC TV footage, showing that on 04.06.2017 in early
morning, the appellant came at the hospital. The witness
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has identified the pen drive from the seized articles. In the
cross-examination, the witness has admitted that, the
recording of CC TV footage was not seized in his presence.
(12) Rajendrakumar Patel (PW-22):
This witness was examined to prove the fact that at
the time of incident, the deceased Vipulbhai was working
in his factory and the working hours was from morning 8-
00 to evening 8-00.
(13) Divyesh Modi (PW-23):
This witness is the owner of house of No.D-147,
which was let out to the deceased Vipulbhai on monthly
rent of Rs.2500/-. This witness after receiving the message
from the neighbour Mr. Prajapati, immediately came to the
spot and lodged an FIR before the Odhav Police against
the unidentified person.
(14) Nayankumar Modi (PW-24):
This witness is the brother of deceased Vipul Modi
and son of deceased Kanchanben. The prosecution has
examined this witness to prove that, the wife of the
deceased Vipul had an affair with some one and on this
count, there was a matrimonial dispute and she was
compelled to leave the house. On this aspect the witness
has stated that, before the incident, when he at the house
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of Vipulbhai, the deceased Kanchanben told him that,
Sujata had an affair with some one who belonged to
Thakore community and on this count, there was a dispute
between husband and wife and she was sent to her
parental home.
(15) Krishnaben Nayanbhai Modi (PW-26):
This witness is the wife of PW-24 and has stated on
the line of her husband Nayan Modi.
(16) Priyavadan Modi (PW-25):
This witness is the distant relative of the deceased
and has not stated any material facts proving the
involvement of the appellant accused herein.
(17) Sujata Kulkarni (PW-30):
This witness is the wife of deceased Vipulbhai and
daughter in law of deceased Kanchanben. This witness has
not admitted her relation with the appellant accused and
also did not have admitted that on account of her relation
with the accused, there was a dispute in the family. She
has been declared hostile and in the cross-examination,
she has denied to the contents of the police statement.
The trial court by exercising discretion under Section 165
of the Evidence Act, asked some questions in search of
truth but nothing material things being surfaced.
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(18) Naranbhai Lalbhai Desai (PW-36):
This witness, at the time of incident, was serving as a
Senior Police Inspector with Odhav Police Station and upon
receiving the vardhi, he went to the place of incident and
recorded the complaint of Divyesh Modi PW-23 and after
registration of the offence, he was entrusted with the
investigation. The witness has stated on oath that, after
preparing the inquest of both the dead bodies, he sent it
for PM at the Civil Hospital and thereafter, prepared a
panchnama of scene of offence. The witness has further
stated that from the reliable sources, he was having
suspicion that the appellant accused was involved in the
offence and after preliminary inquiry, on 07.06.2017, he
came to be arrested. The witness has further stated that,
during the remand period, at the instance of the appellant
accused the weapon axe and knife discovered and
recovered from the electric box of Shri Ram Hospital. The
witness has further stated that during the examination of
doctor Yogesh Jain, he came to know that the movement
of the accused after the incident, was recorded in the CC
TV of the hospital and the pen drive containing the
recording of CC TV footage was being seized and
recovered. The witness has further stated that he had
recorded the statements of Sujata, wife of Vipul and other
independent witnesses including neighbours of the
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deceased which revealed that the appellant accused had
an affair with the wife of deceased and on 03.06.2017, he
had killed the deceased Vipul and Kanchanben at their
home and he was seen by the neighbour Amit Rana when
he was leaving the house after alleged incident. The
witness has further stated that, he had sent the seized
articles for forensic analysis and after due investigation of
the case, he filed the chargesheet before the court
concerned.
(19) Hitesh Trivedi (PW-38):
This witness being Scientific Officer, serving with
Forensic Science University, Gandhinagar had examined
the CC TV footage of the pen drive containing the
movement of the accused at Shri Ram Hospital. The
witness had examined recording of the pen drive which
was forensically analysed and 13 frames were extracted
from the video files present in the pen drive, which was
produced with the report Exh. 166.
13. Submissions:
Mr. Nirad Buch, learned counsel appearing for and on
behalf of the appellant-accused made the following
submissions:
(A) The judgment of conviction and order of sentence
being based on circumstantial evidence and there being
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no eye witness to the incident, the complete chain of
events leading to the involvement of the appellant in the
crime in question has not been established.
(B) The case is one of the circumstantial evidence and
the onus to prove the case by leading cogent, appropriate
and linking evidence is on the prosecution. The manner in
which the evidence has been considered by the trial court
is patently illegal and the judgment has led to grave
miscarriage of justice, as the trial court failed to
appreciate the evidence in its right perspective.
(C) That, according to prosecution case, on 03.06.2017,
at about 7:00 p.m. evening, the appellant-accused entered
into the house of the deceased and raising dispute with
the deceased Kanchanben about sending Sujata (wife of
Vipulbhai) to her parental home at Maharashtra, she was
inflicted repeated axe blows on her head by the accused
and thereafter, when deceased Vipul later on came at
about 8 o' clock into the house, there was verbal spat
about killing of deceased Kanchanben, as a result,
deceased Vipul also killed with the axe by the accused and
then in the midnight at about 4 o' clock, the accused left
the house and went to the Shriram Hospital and concealed
the weapons in the electric box of the hospital and
destroyed the clothes.
It is in these background facts, it was submitted that;
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(a) No witnesses have deposed that on the early
morning, they had seen the appellant-accused leaving the
place of incident carrying with him a plastic bag filled with
the clothes and weapons. The neighbours examined, have
no knowledge about it, nor they deposed against the
accused. Despite of this, the trial court by misreading their
oral evidence, held and observed that, the accused was
lastly seen by Amit Rana (PW.16). The findings of the trial
court, based on the statement of witnesses recorded by
the police under Section 161 Cr.P.C. and same is not
sustainable in eye of law.
(b) Motive is not established as the near relative of the
deceased did not have disclosed the name of the
appellant herein stating that, the appellant had an affair
with Sujata. None of the witnesses pointing finger towards
the accused that he used to come to the house of the
deceased.
(c) That, the CCTV footage to prove the presence of the
appellant-accused at the hospital on 04.11.2017 in the
early morning, has no evidentiary value and cannot read
in evidence as the certificate as mandated under Section
65-B(4) has not been produced. Thus, to prove the
presence of the accused at the hospital carrying a bag of
weapons is not proved and established as a certificate
under Section 65-B(4) is a condition precedent to the
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admissibility of pen drive (electronic records) and oral
evidence cannot be substitute for a certificate under
Section 65-B(4) (Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal ((2020) 7 SCC 1).
(d) That, the discovery and seizure of the weapons like
axe and knife as well as burnt clothes in terms of Section
27 of The Evidence Act has not been proved as per the
procedure prescribed in the law. The panch witnesses of
discovery of weapons and clothes (Sureshchandra Tank
(PW.13 and Kalpesh Dhirubhai) have not supported to the
case of prosecution. The contents of discovery panchnama
(Exh.62) has not been proved by the Investigating Officer
(PW.36). In other words, neither the panchas, nor the I.O.
has stated the exact words spoken by the accused about
his willingness to show the place where the weapons
concealed by him and the place where the clothes had
been burnt. In support of this contention, reliance has
been placed on the case of Ramanand @ Nandlal
Bharti vs. State of Uttar Pradesh (2022 SCC OnLine
SC 1396).
(e) That, the trial court mainly relied upon the disclosure
statement of the accused in the form of confession of the
guilt made before the police when by way of
reconstruction of scene of crime. By referring the
reconstruction panchnama (Exh.49), it was submitted that,
the panchas have not supported to the case of
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prosecution. The confession before the police is hit by
Sections 24 and 25 of The Evidence Act. As such there is
no provision to drew the reconstruction panchnama of
scene of crime. Thus, the evidence of I.O. in this regard
cannot be read in evidence as substantial evidence to
prove the complicity of the accused in the crime.
(f) There was no bloodstain found on the weapons axe
and knife. The blood on the clothes and the polythene bag
was "disintegrated" or "inconclusive". The evidence dog
trackers does not implicate the appellant-accused.
14. In such circumstances as referred above, Mr. Nirad
Buch, learned counsel submitted that, the prosecution has
failed to prove its case beyond reasonable doubt by
adducing cogent, acceptable and trustworthy evidence.
The trial court has convicted the accused on the basis of
suspicion, surmises and conjectures and it is settled
position of law that the prosecution in the case of
circumstantial evidence must establish each instance of
incriminating circumstances by way of reliable and
clinching evidence and circumstances so proved must
form a complete chain of events and in any case if there is
a snap in the chain, the conviction on the basis of missing
link would be fatal to the prosecution. Thus, it is prayed
that, there being merits in the appeal and same may be
allowed by setting aside the judgment of conviction and
order of sentence.
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15. On the death sentence, alternatively it was submitted
that, the present case does not fall in the category of
rarest of rare case. Trial court failed to assign special
reasons of awarding death sentence for satisfying the
criteria that life sentence is rule and death sentence is
exception and life sentence would be completely
inadequate and would not met end of justice. There is
nothing on record to indicate that the appellant-accused
would be menace to the society and there is no possibility
of reformation and rehabilitation and on this aspect, no
material was sought, nor provided by the State to
determine the possibility of reformation of the accused.
The conviction and death sentence recorded on the same
day without calling for a report on the mitigating
circumstances which is contrary to the settled preposition
of law. (Manoj & Ors. Vs. State of Madhya Pradesh
((2023) 2 SCC 353). Thus, alternatively, it was prayed
that, the sentence of capital punishment, having regard to
the facts of the present case is unwarranted and having
been imposed contrary to the settled principle of law and
same is not maintainable in the eye of law.
16. On the other hand, learned State Counsel Mr. L.B.
Dabhi has opposed the submissions made by learned
counsel for the appellant and supported the findings
recorded by the trial court and prayed that, the conviction
deserves to be confirmed more so, looking to the heinous
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offences of two murders committed by the appellant-
accused. Mr. Dabhi, learned State Counsel further
submitted that, the appellant-accused had an affair with
the wife of the deceased and was used to visit her house
and on this issue, there was a matrimonial dispute and on
account of said illicit relationship, the wife Sujata left the
matrimonial home and at relevant time, she was at
Maharashtra. The appellant-accused taking revenge of the
leaving of Sujata, went to the house of deceased
Kanchanben - mother-in-law and after heated exchange of
words with her, she was done to death with the weapon
axe and thereafter, deceased Vipul who had come to
house from his workplace, was done to death because he
came to know that his mother was killed by the appellant
and at that time, the appellant was present in the house.
In such circumstances, the State Counsel has submitted
that, during the reconstruction of scene of offence, the
accused had voluntarily confessed his guilt and same is
proved by the prosecution in the evidence of I.O. (PW.36).
It was further submitted that, after the incident, the
accused went to his hospital where he had concealed the
weapons and destroyed the bloodstained clothes and the
entire incident captured in the CCTV footage of the
hospital and during the investigation, the pen drive
containing the recording was being produced by Dr. Jain.
The accused by his voluntary disclosure, pointed out the
place where the weapons were concealed by him as well
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as the place where the clothes were burnt. The said
aspect being properly deposed by the I.O. (PW.36). In such
circumstances, the incriminating circumstances as
referred above have been proved beyond reasonable
doubt and the prosecution has been able to prove the
complete chain of events and the circumstances which
established the complicity of the accused and none else.
17. In such circumstances, Mr. L.B. Dabhi would urge
that, the prosecution has proved beyond reasonable doubt
the charge against the accused for killing two innocent
persons. So far as sentence part is concerned, the learned
State Counsel urged that, the capital punishment needs
no interference as the manner in which the two persons
brutally killed by the accused, imposing any other
punishment (life) would be completely inadequate and
would not met the end of justice. Thus, it is prayed that,
there being no merits in the appeal and same may be
dismissed.
18. We have heard learned counsel for both the parties
and perused the case records and findings of conviction
and order of sentence recorded by the trial court.
Analysis & findings
19. In our opinion, the following facts are not in dispute:
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(1) the death of both the deceased namely Vipul
Modi and Kanchan Modi were homicidal in nature.
(2) On 03.06.2017, between 7:00 p.m. to midnight,
the death was occurred and as per the expert
evidence, the death was occurred prior to 3 to 4 days
from the date of post-mortem i.e. 07.06.2017.
(3) On the day of incident, the witness Sujata
(PW.30) was not at the house where the incident
occurred as prior to the incident, she had left the
matrimonial home.
(4) The dead bodies were found from the House
No.D-147, Bela Park Society, Ambika Nagar, Odhav,
Ahmedabad.
20. In the present case, the entire prosecution case rests
on the circumstantial evidence and there is no eye witness
to the incident. The law in respect of circumstantial
evidence is extremely well settled by series of judgments
of Hon'ble Supreme Court as well as this Court. Reference
of two of which would be relevant for the purpose of
present consideration;
(1). The Hon'ble Supreme Court in the case of
Hanumant Govind Nargundkar vs. State of M.P.
; (1952) 2 SCC 71 has held as under :-
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"12. It is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should in the first instance
be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive
nature and tendency and they should be such
as to exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that
within all human probability the act must have
been done by the accused."
(2). In Sharad Birdichand Sarda vs. State of
Maharastra ; (1984) 4 SCC 116, the Hon'ble
Supreme Court laid down the Panchsheel Principles
governing the circumstantial evidence which reads as
under :-
"153. A close analysis of this decision would
show that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
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(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned "must or
should" and not "may be" established. There is
not only a grammatical but a legal distinction
between "may be proved" and "must be or
should be proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the
observations were made: [SCC para 19, p.807:
SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between 'may be' and 'must be' is long
and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
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(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused."
(3). Very recently, the Hon'ble Supreme Court in the
cases of Thammaraya vs. State of Karnataka ;
(2025) 3 SCC 590 and Kattavellai @ Devakar vs.
State of Tamil Nadu ; 2025 SCC OnLine SC
1439, has reiterated the said principles. It is also a
well established principle of criminal jurisprudence
that the conviction on the charge of murder can be
based purely on circumstantial evidence, provided
that such evidence is deemed credible and
trustworthy. In cases involving circumstantial
evidence, it is crucial to ensure that the facts leading
to the conclusion of guilt are fully established and
that all the established facts point irrefutable towards
the accused person's guilt. The chain of incriminating
circumstances must be conclusive and should
exclude any hypothesis other than guilt of the
accused. The gap between 'may be guilty' and 'must
be guilty' is significant, separating uncertain
speculations from definitive conclusions. Thus, it is
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the duty of the prosecution to elevate its case from
realm of 'may be true' to 'must be true'. Every piece
of relevant fact needs to be sewn via the golden
thread of circumstantial evidence in order to fabric
the guilt."
21. The facts of this case are to be considered on the
touchstone of the law, which has been laid down by the
Apex Court.
22. Having regard to the evidence on record, the
prosecution has relied upon the following circumstances:
(i) The accused was lastly seen in the early morning
carrying with him a plastic bag filled with the weapons and
clothes by PW.16 - Amit Rana.
(ii) Discovery and recovery of the weapons and evidence
of CCTV footages of the hospital. - The accused thereafter,
went to Shriram Hospital where he was employed as
Compounder and concealed the weapons in the electric
box and burnt the clothes.
(iii) Reconstruction of crime scene and during the police
custody, the accused voluntarily disclosed the facts about
how he had killed two persons by weapon axe and what
was the motive for killing them.
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23. In such circumstances, the only question that arises
for our consideration is as to whether the circumstances
as referred above are cogently and firmly established and
the said circumstances, if taken cumulatively, would form
a chain so complete that the accused was the author of
crime and none else.
24. The first circumstance - reconstruction of crime
scene (demonstration panchnama - Exh.49).
The witnesses of the panchnama namely Arvind
Parmar and Bhikhaji Vihol have not stated anything about
the voluntary statement made by the appellant-accused
narrating the incident and how he had executed the
murder. In our opinion, the confessional statement
incorporated in the panchnama (Exh.49) would hit by
Sections 25 and 26 of The Evidence Act which says that, a
confession made to a police officer is prohibited and
cannot be admitted in the evidence and no confession
made by any person while he is in police custody of a
police officer, shall be proved against such person. In such
circumstances, no reliance can be placed on the evidence
of I.O. (Exh.36) to prove that the accused-appellant for
taking revenge of Sujata, killed the deceased Kanchanben
and thereafter, deceased Vipulbhai because in eye of law,
as such there is no provision to demonstrate the
reconstruction of scene of offence. The said procedure
including the statement of the accused cannot be
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accepted as substantial evidence. It is relevant to note
that, so as to connect the appellant-accused, nothing
being recovered or discovered during the reconstruction of
scene of crime. Thus, the circumstances of reconstruction
of scene of crime cannot be read in evidence against the
accused as substantial evidence.
25. The another circumstance relied upon by the
prosecution is that, the accused was lastly seen by Amit
Rana (PW.16). On careful reading of the testimony of the
witness, nothing being stated by the witness that on
03.06.2017, in the early morning, he had seen the
appellant-accused, leaving the house of the deceased
carrying with him a plastic bag. On the contrary, the
witness has not supported to the case of prosecution and
he has been declared hostile. In the cross-examination, he
has neither supported to the case of prosecution, nor,
admitted the facts of the police statement recorded under
Section 162 of the Cr.P.C. It is relevant to note that, the
learned trial court while relying upon the testimony of the
I.O. (PW.36) who has recorded the statement, having been
considered as substantial evidence and recorded the
conviction. In other words, the oral version of the I.O.
(PW.36) is being considered. However, the fact remains
that, he is not the witness of the incident. In our opinion,
the statements under Section 161 and 162 Cr.P.C. are not
admissible in evidence except for the limited purpose as
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provided in Section 157 of the Evidence Act and same
may be used for contradicting the witness in the manner
provided under Section 145 of the Evidence Act and the
courts cannot use such statements as a corroboration of
the statement made in the court. (Kali Ram vs. State of
H.P. (1973) 2 SCC 808) and R. Shaji vs. State of
Kerala ((2013) 14 SCC 266).
"In Rajendra Singh Vs. State of U.P. ((2007) 7 SCC
378), it was held that, a statement under Section 161
is not substantial piece of evidence. In the case
before the Supreme Court, the Allahabad High Court
relied upon the statement of six witnesses recorded
by the I.O. under Section 161 Cr.P.C. to enter a
finding that, the respondent could not have been
present at the scene of crime as he was present in
the meeting of Nagar Nigam at Allahabad. It was
unequivocally held that, a statement under Section
161 is not substantial piece of evidence and it can be
used only for limited purpose of contradicting the
maker thereof in the manner laid down in the proviso
of Section 162 Cr.P.C. Recently, the Supreme Court in
the decision of Renuka Prasad vs. State
represented by Assistant Superintendent of
Police ((2025) 7 S.C.R. 160), on the evidentiary
value of police statement recorded under Sections
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161 and 162 Cr.P.C., in para-26 of the judgment,
clearly laid down thus:
"26. The statements made by the IOs regarding
the motive, conspiracy and preparation comes
out as the prosecution story, as discernible from
the Section 161 statements of various witnesses
who were questioned by the police during
investigation; which statements are wholly
inadmissible under Section 162 of the Cr.P.C.
Merely because the IOs spoke of such
statements having been made by the witnesses
during investigation, does not give them any
credibility, enabling acceptance, unless the
witnesses themselves spoke of such motive or
acts of commission or omission or instances
from which conspiracy could be inferred as also
the preparation, established beyond reasonable
doubt. We are unable to find either the motive,
the conspiracy or the preparation or even the
crime itself to have been established in Court, at
the trial through the witnesses examined before
Court. The witnesses had turned hostile, for
reasons best known to themselves. The only
inference possible, on the witnesses turning
hostile is that either they have been persuaded
for reasons unknown or coerced into resiling
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from the statements made under Section 161 or
that they had not made such statements before
police officers. Merely because the story came
out of the mouth of the IO, it cannot be believed
and a legal sanctity given to it, higher than that
provided to Section 161 statements under
Section 162 of the Cr.P.C."
Thus, the circumstances of lastly seen of the accused
by the witness (PW.16) is not proved and established.
26. The third circumstance relied by the prosecution is
the discovery and recovery of weapons as well as the
CCTV footage of Shriram Hospital. In order to prove the
said circumstance, the prosecution has mainly relied upon
the testimony of the I.O. (Exh.36). The panch witness of
discovery panchnama (Exh.62) have not supported to the
case of prosecution.
The issue arise for our consideration is as to whether
the prosecution has been able to prove and establish the
discoveries of the weapons and half burnt clothes in
accordance with the law i.e. in terms of Section 27 of The
Evidence Act?
In the facts of the present case, the incident of
murder occurred on 03.06.2017. The FIR came to be
registered against unidentified on 06.06.2017. The
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accused came to be arrested on 07.06.2017. It is the case
of prosecution that, when he was in police custody, the
accused made a disclosure statement that on his own free
will and volition, he would lead to the place where he had
hidden the weapons of the offence and the site where he
had burnt the clothes. The witnesses of the discovery
panchnama (Exh.49) have not supported to the
prosecution case. The manner of proving the disclosure
statement under Section 27 of The Evidence Act has been
subject matter of consideration by the Supreme Court in
various judgments.
In the case of Mohd. ammad Abdul Hafeez vs.
State of Andhra Pradesh ((1983) 1 SCC 143), the
Supreme Court in para-5 of the decision, held as follows:
"5.... if evidence otherwise confessional in character
is admissible under Section 27 of the Indian Evidence
Act, it is obligatory upon the investigating officer to
state and record who gave the information; when he
is dealing with more than one accused, what words
were used by him so that a recovery pursuant to the
information received may be connected to the person
giving the information so as to provide incriminating
evidence against that person."
In the case of Subramanya vs. State of
Karnataka (2022 SC OnLine Supreme Court 1400),
the Supreme Court elaborately explained how the
information received from the accused can be proved in
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terms of Section 27 of the Evidence Act. Para-83 and 84
are relevant to refer which reads as under:
83. The first and the basic infirmity in the evidence of
all the aforesaid prosecution witnesses is that none
of them have deposed the exact statement said to
have been made by the appellant herein which
ultimately led to the discovery of a fact relevant
under Section 27 of the Evidence Act.
84. 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, the site of burial of the dead body, clothes
etc., 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 would 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 etc. 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
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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
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."
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Similar view was taken by the Apex Court in the case
of Ramanand @ Nandlal Bharti (supra) that, mere
exhibiting of memorandum prepared by the Investigating
Officer during investigation cannot tantamount to proof of
its contents. While testifying on oath, the Investigating
Officer would be required to narrate the sequence of
events which transpired leading to the recording of the
disclosure statement.
Reverting back to the facts of the present case, if we
peruse the evidence of I.O. (PW.36), he has not stated the
exact words of voluntary disclosure made by the accused
in the first part of discovery panchnama. In such
circumstances, the requirement as mandated to prove the
disclosure statement leading to the discovery of the
weapons, has not been proved by the I.O. We may with
profit refer the observations of the Supreme Court made in
the case of Ramanand @ Nandlal Bharti (supra)
wherein the Apex Court did not have accepted the
evidence of discovery on the ground that the investigating
officer in his oral evidence has not said about the exact
words uttered by the accused in the police station and
failed to prove the contents of discovery panchnama. The
Supreme Court in para-56 of the judgment observed that,
"the requirement of law needs to be fulfilled before
accepting the discovery by proving the contents of the
panchnama and the I.O. in his deposition obliged in law to
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prove the contents of the panchnama and it is only if the
investigating officer has successfully proved the contents
of discovery panchnama in accordance with law, then, in
that case, the prosecution may be justified in relying upon
such evidence and trial court may also accept the
evidence.
In light of the settled position of law and having
regard to the evidence on record, the prosecution has not
been able to prove and establish the discovery in
accordance with the law and the evidence regarding
disclosure statement to connect the accused in crime.
27. The circumstance of CCTV footage produced in the
form of secondary evidence i.e. pendrive to prove the fact
that, in the early morning i.e. next day of the incident i.e.
04.06.2017, the appellant-accused had gone to the
hospital where he was working and concealed the
weapons and thereafter, nearby the hospital, burnt the
clothes. In our opinion, this evidence of pendrive
containing the CCTV footages and evidence of FSL
examining the pendrive, cannot be admitted in the
evidence because neither the I.O., nor, the owner of the
hospital Dr. Jain had produced the mandatory certificate
as provided under Section 65-B(4) of The Evidence Act
along with the pendrive and therefore, the secondary
evidence in the form of electronic evidence cannot be
used and read against the evidence.
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28. The other circumstances of illicit relationship with
Sujata of the accused is concerned, none of the close
relatives of the deceased as well as the neighbours have
stated that the accused-appellant was in relation with
Sujata - wife of deceased Vipul and used to come at the
place of offence to meet her. In such circumstances, the
motive as projected by the prosecution for the murder is
not proved and established.
29. For the reasons aforementioned, we are of the
considered opinion that, the prosecution failed to prove all
incriminating necessary circumstances by reliable and
clinching evidence which would constitute a complete
chain without any gap, pointing to the guilt of the
accused. The prosecution failed to prove the charge
against the appellant accused by adducing reliable and
truthful evidence beyond reasonable doubt. We are
conscious about the seriousness of the offence, as there is
a charge of double murder. However, it is one of the
fundamental principles of criminal jurisprudence that the
accused is presumed to be innocent till he is proved to be
guilty and the burden to prove the guilt is on the
prosecution and same is require to be proved by legal,
reliable and unimpeachable evidence and prosecution to
stand on its own legs and not to drive support from the
witness of the defense. In the present case, the
prosecution has failed to prove a charge against the
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accused. We are constrained to observe here that the trial
court on the basis of suspicion, surmises and conjectures,
held guilty the accused without appreciating the evidence
in its true perspective and in utter disregard to the settled
principle of law and criminal jurisprudence, which says
that, the when the case rests on circumstantial evidence,
the circumstances howsoever strong, cannot take place of
proof and conviction is not permissible on the basis of
suspicion. It is in this context, we may profitably refer the
observations made by the Supreme Court in the case of
Surendra Kohli vs. State of U.P. (2025 LawSuit SC
1479) wherein while acquitting the accused, it was
observed that, when the proof fails, the only lawful
outcome is to set aside the conviction even in a case of
involving horrific crimes.
30. Accordingly, the appeal challenging the conviction is
allowed. The judgment of conviction and order of death
sentence dated 10.09.2024 passed by the Additional
Sessions Judge, City Court, Ahmedabad in Sessions Case
No.467 of 2017 is set aside. In view of disposal of the
criminal appeal, the Death Reference (Criminal
Confirmation Case No.2 of 2024) has not been accepted
and accordingly, disposed of. In view of disposal of
Criminal Appeal No.2812 of 2024, Criminal Misc.
Application (For Suspension of Sentence) No.1 of 2025
would not survive and stands disposed of accordingly. The
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appellant-accused is in jail. He shall be released forthwith,
unless his custody is necessary in any other case. Fine
amount, if paid, be refunded to the appellant-accused. The
Registry shall send the R & P to the concerned court.
Sd/-
(ILESH J. VORA,J)
Sd/-
(R. T. VACHHANI, J)
TAUSIF SAIYED
