Gujarat High Court
Mahesh Parbatbhai Surela Koli vs State Of Gujarat on 30 July, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/2731/2008 JUDGMENT DATED: 30/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2731 of 2008
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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MAHESH PARBATBHAI SURELA KOLI
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PRATIK B BAROT(3711) 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 : 30/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the appellant original accused
no.7-Mahesh Prabhatbhai Surela Koli, under Section 374(2) of the
Code of Criminal Procedure, 1973 is directed against the judgment
of conviction and order of sentence dated 07.07.2008 passed by the
learned Additional Sessions Judge (FTC), Jamnagar in Sessions
Case No.89 of 2006 by which the appellant and co-accused Alpesh
Rathod (Accused No. 6) have been convicted under Sections 302,
201 read with Section 34 of the Indian Penal Code and sentenced as
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tabulated hereinunder:
Conviction Sentence Fine In default of
fine
Section 302 of RI for Life Rs.1,000/- RI for 3
IPC months
Section 201 RI for 7 years Rs.1000/- RI for 1 year
of IPC
2. The case of the prosecution leading to conviction of the appellant
accused is as follows:
2.1 On 25.04.2006, an offence of robbery with murder came to be
registered (C.R.No. 94 of 2006) with City “A” Division Police
Station, Jamnagar for the offence punishable under Sections 302,
457 and 460 of the Indian Penal Code.
2.2 The incident took place in the brass casting factory running in the
name of ‘Yogi Cast’, owned by PW-17-Ramesh Gandubhai
Bhanderi. The working hours of the factory were 7-00 a.m. to 5-00
p.m. There was a security personnel for round the clock employed
by the complainant namely, Ramesh Bahadursinh Gorkha and he
was living in the first floor of the factory.
2.3 The appellant Mahesh Koli A7 and Mahesh Barot A1 were working
as a labourer with the factory. They were aware about the stock of
brass scrap maintained for running of the factory and on the day of
incident, there was huge stock of scrap lying in the factory. In this
backdrop, the A1 and A7 along with A2 to A6 formed an unlawfulPage 2 of 25
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assembly with an object to commit an offence of robbery. In order to
execute the operation, the accused arranged the matador for
transportation and on 24/25.04.2006 in wee hours, they entered into
factory for the purpose of robbery. The security personnel Ramesh
Gorkha, after seeing the accused, had resisted and confronted the
accused. In order to overcome the resistance, the appellant accused
A7 and A6 Alpesh Rathod, inflicted multiple blows on the deceased
watch-man by weapon Gupti, as a result, the deceased died on the
spot. Thereafter, the accused looted the 600 kgs of brass scrap and
other material from the factory and loaded in the matador and
straightway went to village Jetpur, Dist.: Rajkot, where they sold the
looted brass scraps to A5 Asif Sumra.
2.4 After the incident, i.e. on next day on 25.04.2006, when the
complainant PW-17 came to his factory, he could not find the
presence of the watchman at the ground floor and shutter of the
factory was open. The PW-17 went to the upper floor, and saw the
dead body of the watch-man lying in the pool of blood. He
informed the police. On arrival of the police, and upon inquiry, it
revealed that, unidentified persons looted the brass scraps, and
killed the watch-man.
The offence in para-2.1 came to be registered with City “A” Police
Station, Jamnagar. The inquest was prepared and dead body of the
deceased sent for autopsy. The police drew the panchnama of scene
of occurrence and collected the necessary samples for FSL.
The IO PW-38, Mr. V. D. Gohel, during the course of
investigation, came to know that appellant A7 being a worker of
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the factory, remained absent after the incident and upon further
investigation, it revealed that, A7 in connivance with A1 Mahesh
Barot made a plan for robbery and in order to execute the plan, the
co-accused A2, A3, A4 and A6 also joined and participated in the
offence. It was further revealed by the IO that, the looted brass
scraps transported in the matador and sold to A5 at Jetpur City.
The I.O. in view of the involvement of the accused, arrested A1 to
A6 and seized the sold brass scraps from A5 and at the disclosure
statement of A6 Alpesh Rathod, discovered and recovered the
weapon gupti and its cover from the river of the city.
2.5 The appellant A7 came to know that, the police is looking on him,
and therefore, he left his home and went to Village Bhanvad where
he could not get any shelter from anyone. On 01.05.2006, the
accused appellant purchased the poison for committing the suicide
and when he landed in Jamnagar, he consumed poison near brook-
bond company and his condition came to be deteriorated and after
reaching the home, he told the family members about the reasons
for consuming poison and was immediately admitted in the
government hospital at Jamnagar. On 03.05.2006, the medical
officer had informed the duty constable PW:40 Mr.A.K. Mehta and
the statement of the accused was recorded by PW:40 wherein he
has stated inter alia that his name was surface in the offence of
robbery and murder and was scared by the police and under the
apprehension, he went to Village Bhanvad and while returning
back to Jamnagar, he thought to end his life by consuming poison,
as a result, he purchased the poison and when he came to
Jamnagar, he consumed it. The offence of attempt to suicide under
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Section 309 came to be registered with City-B Police Station. The
I.O. of the case came to know about the admission of the accused
in the hospital and after his discharge on 09.05.2006, the accused
came to be arrested in the case of robbery and murder.
During the interrogation, and while he was in the custody, he made
a confessional statement and on his voluntary statement, the
weapon gupti and burnt clothes discovered and recovered at the
behest of the accused. The I.O. at the behest of the accused,
discovered and recovered the slippers which the accused had worn
at the time of commission of the offence.
In such circumstances, PW:38, Mr.V.D. Gohil, Police Inspector
found sufficient material against 7 accused for the charge of
dacoity with murder and causing disappearance of evidence and
accordingly, filed the chargesheet before the jurisdictional
Magistrate Court at Jamnagar. The case was culminated into
Sessions Case No.89 of 2006 and was tried by the Court of
Additional Sessions Judge (FTC), Jamnagar.
3. After due framing of charge and upon accused not pleaded guilty,
the trial commenced before the Sessions Court. In order to prove
the charge, the prosecution examined as many as 40 witnesses and
exhibited following documents:
Oral evidence
PW 1 – Exh.24 Arvindbhai Jadavjibhai, panch witness
PW 2 – Exh.25 Madhavjibhai Popatbhai Patoliya, panch witness
PW 3 – Exh.26 Prafulbhai Harilal Kankhra, panch witnessPage 5 of 25
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PW 4 – Exh.27 Sanjay Mansukhbhai Kankhra, panch witness
PW 5 – Exh.28 Harilal Bavabhai Ramani, panch witness
PW 6 – Exh.29 Rameshbhai Raghavbhai Makwana, panch witness
PW 7 – Exh.30 Jagdish Sinh Udeysinh Jadeja, panch witness
PW 8 – Exh.35 Vijay Meghjibhai Bahnderi, panch witness
PW 9 – Exh.36 Jivanbhai Gandubhai, panch witness
PW 10 – Exh.37 Mahendrabhai Dhirajlal Fuliya, panch witness
PW 11 – Exh.38 Navjibhai Bachubhai, panch witness
PW 12 – Exh.39 Pruthvirajsinh Chandrsinh Vaghela, forensic officer
PW 13 – Exh.42 Ratilal Ramjibhai Rank, panch witness
PW 14 – Exh.43 Jagdishbhai saikanbhai katarmal, panch witness
PW 15 – Exh.44 Prafulbhai Harilal Kankhra, panch witness
PW 16 – Exh.48 Mahesh Bhikhabhai
PW 17 – Exh.60 Rameshbhai Gandubhai Bhanderi, Complainant
PW 18 – Exh.72 Jentilal Ragunath Popat, Medical Officer
PW 19 – Exh.74 Prabhaben Nanjibhai
PW 20 – Exh.75 Bipinbhai Bhikubhai
PW 21 – Exh.78 Ashishbhai Premnarayan Kher
PW 22 – Exh.84 Abhinav Mrudalbhai Kulsresth
PW 23 – Exh.89 Kanchanben Bavkubhai
PW 24 – Exh.90 Mayursinh Juvansinh
PW 25 – Exh.92 Kaushikbhai Bensing Makwana, Scientific officer
PW 26 – Exh.94 Kanjibhai Virjibhai Makwana, PSI
PW 27 – Exh.99 Yunusbhai Hasanbhai Makwana
PW 28 – Exh.100 Kamleshbhai Jamanbhai Amipara
PW 29 – Exh.102 Savitaben Parbatbhai SurelaPage 6 of 25
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PW 30 – Exh.103 Sarpbhadur Paherbhadur
PW 31 – Exh.108 Pritiben Premchandbhai Vora, medical Officer
PW 32 – Exh.115 Bhudharbhai Thobhanbhai Savsani, Circle Officer
PW 33 – Exh.119 Lakhmanbhai Kanabhai
PW 34 – Exh.120 Aminbhai Abdul Raheman, PSI
PW 35 – Exh.147 Mahavirsinh Navalsinh Sarvaiya, PI
PW 36 – Exh.151 Bhupatbhai Govindbhai Chavda, PI
PW 37 – Exh.156 Pritiben Premchandbhai Vora, Medical officer
PW 38 – Exh.164 Vikramsinh Dasrathsinh Gohel, PI
PW 39 – Exh.222 Devsibhai Amarshibhai Vaghela, PSO
PW 40 – Exh.230 Kishorbhai Kantibhai Mehta, ASIDocumentary evidence
Exh.34 Panchnama of Deceased clothes
Exh.40 PM Report Yadi
Exh.41 PM Report
Exh.68 Disha Impesh Bass Scrap Bill
Exh.73 Certificate of Treatment of Alpesh from Dr. J.R. Popat
Exh.85 Letter from Hutch Cellular Company regarding ownership of
Mobile no. 9825918718 and 9825721095
Exh. 86&87 Letter from Hutch Cellular Company regarding call activity
from Mobile no. 9825918718 and 9825721095
Exh.88 Certificate from Hutch Cellular Company regarding
providing of information for Mobile no. 9825918718 and
9825721095
Exh.93 Preliminary Report from FSL, Mobile Unit
Exh.95 List of Commission of CrimePage 7 of 25
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Exh.96 Copy of Station Diary
Exh.97 Special Report for Major Crimes
Exh.98 Crime Report E-Form
Exh.101 Diesel bill dated 23.04.06 from Reliance Petrol Pump
Exh.113 Collection of Accused Blood Sample Form
Exh.114 Certificate of Injury of Alpesh Karsanbhai
Exh.116 List of mapping of space to be created
Exh.117 Map of Construction Site
Exh.118 Letter Regarding construction site sent
Exh.121 Panchnama of Seizure of scrap Brass and Zinc material
Exh.157&158 List for taking blood samples
Exh.159 Mahesh Parbat Blood sample collection form
Exh.165 Complaint
Exh.166 Panchnama of Place of Offence
Exh.167 Inquest Panchnama
Exh.168 Panchnama of vehicle used in offence
Exh.169 Accused Mehul Nareshbhai arrest panchnama
Exh.170 Discovery Panchnama of weapon
Exh.171 Discovery panchnama of shirt and pant
Exh.172 Accused Mahesh Parbat Surela arrest panchnama
Exh.173 Panchnama of seizure of Burnt clothes
Exh.174 Panchnama of seizure of Slippers
Exh.175 List of Maps
Exh.176 List of Inquest panchnama of deceased
Exh.177,178 List of notes in station diaryPage 8 of 25
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&179
Exh.180 Yadi for treatment of accused Alpesh Karsanbhai
Exh.181-183 Yadi for Collection of blood sample of accused
Exh.184 List of entries
Exh.185-187 Yadi for addition of section 201,395 and 412
Exh.188&189 Yadi for information to Hutch and Airtel cellular company
Exh.190&191 Letter of information regarding mobile of accused Dhoda
and Mehul barot
Exh.192 Letter from Airtel regarding mobile of Lakhman Kanabhai
Exh.193 RC Book of Vehicle bearing number GJ03V3773
Exh.194,195 Goods and Carriage permit of Vehicle bearing number
GJ03V3773
Exh.196 Police dog call form
Exh.197 Post mortem form
Exh.198-200 FSL Junagadh list of issue, letter of authority and Dispatch
note
Exh.201-206 FSL Junagadh Receipt of goods, forwarding letter and
analysis report
Exh.207-210 FSL report and Serological report and letter
Exh.223 Discharge of station diary
Exh.224 Copy of Information entry no.179/06
Exh.231 Statement of Accused Mahesh Parbat
Exh.232 Copy of MLC note no. 115/06
Exh.233 Location of FIR
4. After closure of the prosecution evidence, the accused were
questioned under Section 313 of the Cr.P.C. to which they stated
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their false involvement and claimed innocence.
5. The accused appellant and others have not adduced any evidence in
their defence.
6. After appreciation of the evidence and hearing the parties, the
learned Sessions Judge came to a conclusion that;
(a) The prosecution miserably proved the charge of unlawful
assembly, dacoity with murder against the accused nos.1 to 5 and
they have been acquitted of all the charges;
(b) So far as appellant original accused no.7 and accused no.6-
Alpesh Rathod are concerned, the learned Trial Court on the basis
of evidence of discovery of weapons, and the confessional
statement made before the police by the accused no.7 appellant
herein, came to a conclusion that the charge of murder has been
proved beyond reasonable doubt against the accused nos.6 and 7
and they have been found guilty for the commission of the murder
and causing disappearance of the evidence under Sections 302 and
201 of the Indian Penal Code and sentenced them to suffer life
imprisonment.
7. This case has long history as after the verdict, the State has
challenged the acquittal of the accused nos.1 and 5 by filing
acquittal appeal before this Court and simultaneously, the accused
nos.6 and 7 had challenged their conviction by preferring
conviction appeal (Criminal Appeal Nos.2282, 2731, 2893, and
2894 of 2008). Vide judgment and order dated 21.08.2015, the
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Coordinate Bench of this Court while disposing the group of
appeals, dismissed the appeals filed by the State and upholding the
conviction of accused nos.6 and 7, their appeals also came to be
dismissed.
8. The appellant Mahesh Koli – original accused no.7 had challenged
the judgment of Coordinate Bench dismissing his conviction
appeal, before the Supreme Court (Criminal Appeal No.5466 of
2024, SLP Criminal Appeal No.9920 of 2022). The Supreme
Court, vide order dated 19.12.2024, set aside the judgment and
order of Coordinate Bench, dated 21.08.2015, remanded the matter
for a fresh consideration on its own merits. In Para-9 of the
judgment, the Supreme Court has observed thus:
“9. The High Court in affirming the conviction and sentence passed by
the trial Court has not dealt with any of the submissions advanced
by the parties, more particularly, by the counsel for the accused
and has even ignored the fact that the entire prosecution was based
upon circumstantial evidence. Not a single piece of evidence has
been analyzed as if the chain of events stands proved so as to
upheld the conviction. Notwithstanding the fact, that the appellate
court in affirming the acquittal is not required to re-write the
judgment or to give fresh reasoning, nonetheless, in our opinion,
reasons for agreeing with the findings recorded by the trial Court
must be recorded after briefly analyzing the evidence or agreeing
with the analysis made by the trial Court. The manner in which the
impugned judgment has been passed which apparently has been
written in a casual manner cannot be approved of by this Court.”
9. In the aforesaid circumstances, after the remand, the present appeal
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notified for final hearing before this Court.
10. We have heard learned counsel Mr.Pratik Barot and learned
Additional Public Prosecutor Mr.L.B. Dabhi, for the respondent –
State.
11. Mr.Pratik Barot, learned advocate while assailing the impugned
judgment and order of sentence, vehemently contended that;
(a) The entire prosecution case rests on circumstantial evidence and
the complete chain of events leading to the involvement of the
appellant in the crime in question have not been established by the
prosecution;
(b) That the incident took place on 24.04.2006, and thereafter,
when the appellant was admitted in the hospital, the hospital police
recorded his statement wherein the reference of present case was
made by the accused and why the accused had consumed the
poison that facts have been disclosed in the police statement. On
the basis of the said statement and statement of co-accused on
09.05.2006, the appellant accused was arrested. Thus, the one of
the circumstance relied by the prosecution to prove the case against
the accused appellant is the confessional statement made before the
police. While referring Sections 25 and 26 of the Evidence Act, it
was submitted that a confession made by the accused, in his
attempt to suicide is not admissible in evidence against him
because a confession made before the police official whether in
custody or not cannot be proved against the accused, and therefore,
the two sections i.e. Sections 25 and 26 of the Evidence Act put a
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complete bar in the admissibility of the confessional statement
made to a police official. The Trial Court while recording the
reasons, mainly relied on the proceedings of suicide case, more
particularly, the confessional statement (Exh.231) made before the
police constable PW:40 Kishor Mehta. In view of the statutory bar,
and settled position of law, it was submitted that the learned Trial
Court committed a grave error of law and went wrong while
relying on the inadmissible evidence.
(c) That in a case which is based on circumstantial evidence,
motive for committing crime on the part of the accused, assumes
important. The suggested motive was to loot the brass scraps lying
in the factory. In the present case, the Trial Court disbelieved the
charge of robbery. In such circumstances, when the motive of
crime is not established, and in absence of important link to
connect the accused when missing, the accused cannot be
convicted.
(d) That the confessional statement of the accused while
discovery and recovery of the burnt clothes cannot be read against
the evidence as the prosecution failed to prove the contents of
discovery panchnama (Exh.173) in terms of Section 27 of the
Evidence Act. In this context, it was submitted that the discovery
being effected from the open and assessable place and on that
count also, the evidence of discovery does not inspire confidence.
Reliance has been placed on the judgment of Ramanand Vs. State
of U.P. (2022 LiveLaw Supreme Court 843).
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12. In the circumstances, referred to above, Mr.Pratik Barot, learned
counsel submitted that, the trial court failed to appreciate the
evidence in its true prospective and recorded the conviction on the
basis of suspicion, conjectures and surmises as there is no evidence
to prove the chain of events leading to the guilt of the accused-
appellant as each and every circumstances require to be established
with certainty that the accused and none else is the perpetrator of
the crime alleged. Thus, therefore, he submitted that the court below
has committed a serious error while convicting the accused and the
judgment of conviction and order of sentence are not sustainable
and law and same may be set aside and appellant be acquitted from
all charges.
13. On the other hand, Mr. L.B. Dabhi, learned State counsel
vehemently opposed the appeal. He submitted that, the court below
has not committed any error while holding the accused guilty of
offence of murder and causing disappearance of the evidence. The
appellant was associated with the cast factory where the murder
took place as after the incident, he did not join the factory and
absconded for about one month and thereafter, he tried to commit
suicide by consuming poison and when he was hospitalized, he
disclosed before the PW.40 – Kishor Mehta who was on duty as
Constable with Government Hospital. The statement of the accused
duly recorded by PW.40 (Exh.231) would show that the guilty mind
of the appellant-accused. Thus, the relations of the accused as a
labourer with the cast factory is not in dispute and after his arrest,
during the course of investigation, he made a confessional statement
and on his statement, the discovery of incriminating articles like
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weapon and clothes would further prove the involvement of the
appellant in the commission of crime. In such circumstances,
prosecution has proved beyond reasonable doubt the charges against
the appellant and the circumstances as referred above have been
proved beyond reasonable doubt and all the circumstances
cumulatively as well as individually are sufficient to establish the
guilt of the accused and therefore, he prays that, there being no
merits in the appeal and the same may be dismissed.
14. Before adverting to the submissions, it is relevant to refer the
following admitted facts:
(a) In the present case, there is no dispute about homicidal death
of the deceased and therefore, there is no need to refer the
testimonies to decide the issue. In our considered opinion, the
findings on this aspect recorded by the trial court are based on the
evidence on record and we hereby affirm the said findings with
respect to the homicidal death of the deceased recorded by the trial
court.
(b) In the case on hand, the appellant accused was working as a
labourer with the Yogi Cast and the same is not disputed by the
appellant. It is also not in dispute that the deceased Ramesh
Bahadur (Nepali) was employed as a Security Person by PW.17
and he was living at the first floor of the factory and the ground
floor, the production house was established. In view of the
admitted facts, it is proved and established that on 24.04.2006, the
Security Man Ramesh Bahadur was allegedly murdered by thePage 15 of 25
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sharp edge weapons. There is no eyewitness of the incident and the
entire case of the prosecution rests on the circumstantial evidence.
15. The prosecution case being based on circumstantial evidence, it
relied on the following circumstances to establish its case against
the accused:
(i) the accused and accused no.6 – Alpesh Rathod in
furtherance of their common intention, entered into factory and
while carrying away the looted brass scrap, they killed security
person by causing multiple blows on the body of the deceased with
weapon Gupti;
(ii) the appellant after the incident, sold the looted brass scraps
to A5 Asif Sumara;
(iii) A6 Alpesh Rathod after the incident went to his village
Jetpur and tried to destroy the weapon gupti and clothes, etc. by
throwing it into river which later on discovered and recovered at
the instance of accused;
(iv) the appellant accused after the incident, had hidden the
weapon gupti allegedly used in commission of the offence by him
as well as his clothes, keeping on the babul tree near the open plot
situated at Gokulnagar, Jamnagar which he had pointed out to the
police by his disclosure statement in terms of Section 27 of the
Evidence Act;
(v) thereafter, the appellant accused was on run and on
01.05.2006, he went to Village Bhanvad and on 02.05.2006, hePage 16 of 25
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attempted to suicide by consuming poison and he was admitted in
the government hospital and during his treatment, the hospital
police recorded his statement wherein he made a reference of the
offence of robbery and murder and disclosed the reasons for
consuming poison;
The learned Trial Court, after appreciation of the evidence, came to
a conclusion that the aforesaid circumstances stand proved and the
prosecution has proved the complete chain of incriminating
circumstances pointing towards the guilt of the accused.
16. Before dealing with the rival submissions of the parties, it would be
useful to analysis the evidence of the some of the relevant
witnesses:
(i) PW.13 – Ratilal Rank – The witness being a panch witness
of discovery of weapon (Exh.173), has stated that, on 10.05.2006,
he along with Bharat Ranchhodbhai were called by the City Police
Station and appraised that, the accused Mahesh Koli 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 clothes
which had worn by him at the time of commission of the offence.
The witness had further stated that the police had noted the said
facts in the first part of the panchnama and in the Government Jeep,
they proceeded to the place where the weapon was hidden by the
accused and the said place was shown by the accused-appellant and
while reaching at the place, the accused shown the babul tree
situated on the open plot in the area of Gokulnagar, Jamnagar and
pointed out one plastic bag lying on the tree and thereafter, on
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search of the plastic bag, the weapon Gupti with its cover and the
burnt clothes were found and same had been seized and recovered
by the police. In the cross-examination, the witness has admitted
that, the area where the weapon and clothes found, is accessible to
all and it is a public area.
(ii) During the investigation, I.O. on the basis of voluntary
statement of the accused, discovered and recovered the slippers of
the appellant which he worn at the time of commission of the
offence. The slipper was found from the house of the appellant. The
witnesses of discovery panchnama (Exh.174) declared hostile and
they did not support to the case of prosecution. Thus, the deposition
of PW.14 – Jagdish Katarmal and PW.15 Praful Kanakhra does not
require to refer for the purpose of appreciation of evidence.
(iii) Vikramsinh Dashrathsinh Gohel (PW-38) – The I.O. in his
deposition, so far as, arrest and role attributable to the appellant is
concerned, it has been stated that after arrest of co-accused, name of
the appellant surfaced in the commission of the murder, but he was
on run and police were looking on the accused. The IO in his chief
examination, stated that on 03.05.2006, the message received from
the City “B” Police Station about the admission of the appellant
accused in the G.G Hospital, Jamnagar, as in attempt to suicide, he
had consumed poison. The accused was discharged on 09.05.2006
and thereafter, he came to be arrested in the present offence of
murder. The I.O. has further stated that during the course of
investigation, it was revealed that, the accused appellant while in
custody, on his own free will, made a statement that he would show
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the place where had hidden the weapon gupti and his clothes. Based
on this statement made in terms of Section 27, in the presence of
two panchas, the facts of disclosure being noted in the first part of
the panchnama and thereafter, at the instance of accused, the
weapon gupti and clothes have been discovered and recovered. The
IO has further stated that, the statement of the accused made during
his stay at GG Hospital and other papers kept with the investigation
papers and after completion of the investigation, the chargesheet
came to be filed against the appellant and others. In the cross-
examination, except denial and false implication of the accused,
nothing being asked to the IO by the defence side.
(iv) Kishor K. Mehta (PW.40) – Mr. Kishor Mehta being a A.S.I,
City “B” Division Police Station, Jamnagar was posted at Hospital
Chowky and when he was on duty on 03.05.2006 at about midnight
3:40 a.m., he received a note from the Medical Officer, containing
therein that, one Mahesh Koli has consumed poison and he was
brought for treatment and presently he has been admitted in the
ward. On receiving the said note, the PW:40 contacted the appellant
accused and he was conscious statement of mind and after verifying
the said facts, the witness proceeded to record the statement of the
accused (Exh.233), wherein he has stated inter alia that, “on
24.04.2006, there was a theft and murder in the factory and his
name is surfaced and police is after him and thus, he left the house
and went to the Village: Bhanwad where he did not get the shelter,
as a result, he purchased a poisonous medicine from the medical
store and boarded the train to come to Jamnagar and on arrival at
Jamnagar, when he was passing nearby Brookbond Area, he
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consumed poison and in a few minutes, he felt dizziness and started
vomiting and after reaching at home, his wife and other family
members brought him at G.G. Hospital.”
In the cross-examination, nothing brought on record to show that,
such kind of statement has not been disclosed by the appellant. The
statement was given Exhibit (Exh.231).
17. We have heard at length the learned counsel for the parties.
Admittedly, the prosecution case rest on the circumstantial
evidence. It is settled position of law that, when the case is based
on circumstantial evidence, the prosecution must established the
chain of unbroken events, unerringly pointing to the guilt of the
accused and none other. The circumstances from which the
conclusion of guilt is to be drawn, should in the first instance be
fully established and thereafter the circumstances taken
cumulatively should formed 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 further show that in all
probability the offence must have been committed by the accused.
(Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984
SC 1622).
18. Now, the question that arises for our consideration is whether the
aforesaid circumstances and the chain of events conclusively
establish the involvement of the accused in committing the offence
of murder?
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19. Let us examine the first circumstance of discovery and recovery of
weapon and burnt clothes. In the facts of the present case, the
incident of murder alleged to have been taken place on
24/25.04.2006. The appellant was arrested on 09.05.2006. The
alleged facts of discovery of weapon at the behest of accused being
demonstrated on 11.05.2006. The witness of the discovery
panchnama (PW.13) has supported the prosecution case, inter alia,
stating that the accused made a voluntary statement that, he intends
to show the place where he had hidden the weapon Gupti and on
his behest, the facts discovered and the weapons and clothes were
recovered and seized. It is not in dispute that, the place where the
weapon found was an open and accessible place and public access
cannot be ruled out. In such circumstances, we have a reasonable
doubt in our mind about the plastic bag filled with the weapon
Gupti, went unnoticed to the public in general and therefore, the
facts of discovery in the form of confessional statement of accused
from an open place weakens the prosecution case significantly. We
may refer the language of Section 27 which says that, when any
fact is deposed to as discovered in consequences of information
received from a person accused of any offence, in police custody
and if the information relates distinctly to the fact discovered, the
said confession may be presumed to be true. Thus, in the facts of
present case, the evidence of discovery as relied by the prosecution
is not reliable and trust worthy as the alleged weapon is found in an
open and accessible place and direct link between the accused
statement and his exclusive knowledge of the weapon’s
concealment is severed. The another infirmities we have found in
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the prosecution case on the admissibility of disclosure statement
made during the discovery and recovery. The witnesses of
discovery panchnama Exh.173 and the I.O. PW:38 failed to prove
the contents of the panchnama as mandated by the Supreme Court
in the case of Ramanand vs. State of U.P. (2022) Livelaw SC 843.
The Supreme Court has emphasized that, the contents of discovery
panchnama must be proved by the prosecution before accepting the
evidence of discovery and there is an obligation on the part of I.O.
to prove the contents of discovery panchnama. In the present case,
upon careful examination of the oral as well as documentary
evidence, neither the panchas, nor the I.O. have deposed the exact
statement and/or words uttered by the accused on the aspect of
discovery of facts and recovery of weapon. In view of the
settlement position of law and the evidence adduced by the
prosecution in the present case, the evidence of discovery in the
form of disclosure statement and recovery of weapon at the
instance of accused-appellant is not proved and established and the
same cannot be read in evidence against the accused.
20. The prosecution mainly relied on the circumstance of statement of
the accused-appellant before the Police Constable Mr. Kirit Mehta
(Exh.40). We have carefully examined the evidence on this aspect
i.e. statement of the accused (Exh.231). It is no doubt true that on
03.05.2006, the accused consumed poison and was admitted in the
G.G. Hospital, Jamnagar. Upon reading the entire statement, we do
not find any incriminating circumstances suggestive of the
admission and/or confession of the accused of the guilt. The
accused while narrating the cause for consuming poison, stated
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that, the police were looking on him in connection with the theft
and murder of security guard in the factory premises and was
scared of the things as his name was disclosed as offender in the
said incident and that is why he left the house and went to Bhanvad
Village where he did not get shelter from anyone and had
purchased the poisonous medicine and after arrival at Jamnagar
Railway Station, he consumed the medicine near Brookbond Area.
In such circumstances, we do not find from the statement of the
accused a direct acknowledgment of the guilt or admission of the
facts which constitute the offence charged with and therefore, the
statement recorded by the police cannot be proved against the
accused under Sections 21, 25 and 26 of The Evidence Act. Even
otherwise, assuming that there was a confession and/or admission
of the guilt of the accused then also a statement made to the police
officer in one case is not admissible in evidence, against the
accused in another case. Section 25 of the Evidence Act says that a
confession made to the police officer is prohibited and cannot be
admitted in evidence. Likewise Section 26 provides that no
confession made by any person while he is in police custody of a
police officer shall be proved against such person unless it is made
in the immediate presence of Magistrate. In other words, this two
sections put a complete bar in the admissibility of a confessional
statement made to the police officer. Thus, in our view, the
circumstance of admitting the guilt of the accused by way of
confessional statement to the police officer cannot be read in
evidence against the accused and therefore, the prosecution on this
aspect miserably failed to prove the said circumstance pointing the
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guilt of the accused.
21. Based on the analysis of the evidence on record, the circumstances
as relied by the prosecution namely evidence of discovery and
recovery, acknowledgment of the guilt by the accused appellant
before the police officer, are insufficient to link the accused in the
commission of the crime and therefore, we are of the considered
view that the chain of incriminating circumstances required to
bring home the guilt of the accused is not complete in all aspects. It
is relevant to note that in a criminal trial irrespective of gravity and
nature of charges, the prosecution is under an obligation to prove
the guilt of the accused by leading evidence which must be
convincing and link the accused with the crime beyond reasonable
doubt and the prosecution cannot be relieved by its duty by
creating suspicion in the mind of the Court or by proving
suspicious circumstances against the accused in the case because
suspicion, however, grave cannot take the place of the proof and it
is fundamentally maxim of criminal jurisprudence that suspicion
and conjectures are no substitute for proof.
22. For the reasons aforementioned, we have no hesitation to hold that
the prosecution failed to prove the charges against the accused by
acceptable, cogent and reliable evidence. The judgment of
conviction and order of sentence passed against the appellant
accused is not sustainable in law and accordingly, deserves to be
set aside and are hereby set aside.
23. In the result, the appeal stands allowed. The judgment of
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conviction and order of sentence dated 07.07.2008 passed in
Sessions Case No.89 of 2006 is set aside. The appellant accused
stands acquitted of all charges. The accused appellant is on bail and
no need to surrender again. The bail bond stands cancelled and
discharged. Fine amount deposited if any, be refunded to the
accused. R & P be sent back to the concerned Trial Court.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
Rakesh
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