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2019 DIGILAW 433 (GUJ)

Rameshbhai Babubhai Thakor v. State of Gujarat

2019-04-18

A.C.RAO, J.B.PARDIWALA

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JUDGMENT : A.C. RAO., J. 1. The appellants – original accused Nos. 1 and 3 have preferred this Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”), questioning the legality and validity of the judgment and order of conviction and sentence dated 26th July, 2018 passed by the 3rd Additional Sessions Judge, Banaskantha at Diyodar, in the Sessions Case No.3 of 2017. The 3rd Additional Sessions Judge convicted the appellants herein - original accused Nos. 1 and 3 for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code (for short “the IPC”) and sentenced them to undergo life imprisonment with fine of Rs.5,000/- each, and in default of fine, directed to undergo further simple imprisonment for a period of three months. The 3rd Additional Sessions Judge was pleased to grant benefit of set off as per Section 428 of the Cr.P.C. 2. The case of the prosecution, in nut shell is that, on 9th October, 2016, the complainant namely, Khodabhai Raymalbhai Thakor came to know that a dead body, was lying near the agricultural field of one Devanbhai Madhabhai Patel wrapped in a plastic bag. When he opened the plastic bag, he found a nude dead body cut into pieces. Therefore, he informed the police and a complaint was registered at the Bhabhar Police Station vide I-C.R. No.76 of 2016. 2.1 After the registration of the FIR, the Investigating Officer carried out the investigation and prepared the panchnama of the place of offence, collected evidence from the place of offence, recovery panchnama and inquest panchnama were prepared. He also collected muddamal and send muddamal to the FSL, collected FSL report and serological report. He recorded statements of the witnesses and carried out other investigation. The Investigating Officer found that the present appellants – original accused Nos. 1 and 3 and one another co-accused – original accused No.2 – Arvindbhai Vanabhai Chauhan, were the authors of the crime and they had disposed of the dead body of one Bhaveshbhai Rajabhai Thakor. It is alleged that the deceased – Bhaveshbhai had an evil-eye on the appellant No.2 – Sonlben Thakor and therefore, the appellant No.1 – Rameshbhai Thakor being the husband of the appellant No.2, killed the deceased and disposed of the dead body with the help of the co-accused. It is alleged that the deceased – Bhaveshbhai had an evil-eye on the appellant No.2 – Sonlben Thakor and therefore, the appellant No.1 – Rameshbhai Thakor being the husband of the appellant No.2, killed the deceased and disposed of the dead body with the help of the co-accused. The dead body was cut into pieces and was thrown between Chaladar and Mespura village and thereby as alleged they tried to destroy the evidence. 2.3 On completion of the investigation, the Investigating Officer filed charge-sheet against the accused persons under Section 173 of the Cr.P.C. in the competent court of the Judicial Magistrate, First Class, Bhabhar and the case was registered as Criminal Case. 2.4 Since the case was triable by the court of Sessions, the Judicial Magistrate after providing copies of the charge-sheet papers to the accused free of costs, committed the case to the Sessions Court under Section 209 of the Cr.P.C. as the offence was triable by the court of Sessions and the case was re-registered as Sessions Case No.3 of 2017 in the court of Sessions Judge, Diyodar. 2.5 Thereafter, the Sessions Court framed charge under Section 302, 201 read with Section 34 of the IPC against the accused at Exh.5. The Sessions court also recorded plea of the accused Nos.1, 2 and 3 under Section 228(2) of the Cr.P.C. at Exh.6, 7 and 8. The accused pleaded not guilty and prayed for trial. Therefore, the Sessions Judge conducted the trial in accordance with law. 2.6 The prosecution produced following oral as well as documentary evidence : ORAL EVIDENCE : - Sr. no. Details Exhibit No. 1 Khodabhai Raimalbhai Thakor - Complainant 11 2 Dineshbhai Nagjibhai Prajapati - Panch-Witness of the Panchnama (Exhibit-15) of the scene of offence 14 3 Karsanbhai Ajmalbhai Prajapati- Panch-Witness of the Panchnama (Exhibit-15) of the scene of offence 16 4 Govindbhai Khemabhai Patel - Panch-Witness of the Panchnama (Exhibit-18) of the Discovery of weapons 17 5 Virjibhai Mavjibhai Patel - Panch-Witness of the Panchnama (Exhibit-18) of the Discovery of weapon 19 6 Dr. Ravindrabhai Bharatbhai Patel - Medical Officer who performed P.M. of the dead body of deceased. 20 7 Harjibhai Magabhai Patel – Witness 21 8 Sankarbhai Mansangbhai Patel – Witness 22 9 Rajabhai Mavjibhai Thakor - Witness & Father of the deceased. Ravindrabhai Bharatbhai Patel - Medical Officer who performed P.M. of the dead body of deceased. 20 7 Harjibhai Magabhai Patel – Witness 21 8 Sankarbhai Mansangbhai Patel – Witness 22 9 Rajabhai Mavjibhai Thakor - Witness & Father of the deceased. 23 10 Jodhabhai Ravjibhai Thakor - Witness 24 11 Bhanjibhai Punjabhai Patel - Witness 25 12 Rajkumar Kantilal Parmar - P.S.I. & I.O. 31 13 Rameshbhai Gajabhai Patel -- Panch-Witness of the Inquest Panchnama (Exhibit-52) 51 14 Ganpatbhai Jivabhai Solanki -- Panch-Witness of the Inquest Panchnama (Exhibit-52) 53 15 Devsinh Khodabhai Kumbhar – Witness Circle Officer who prepared the map of the scene of offence. 54 DOCUMENTARY EVIDENCE : - Sr. no. Details Exhibit No. 1 Complaint 12 2 Panchnama of the scene of offence 15 3 Recovery Panchnama of weapon. 18 4 Post Mortem Note. 21 5 List 32 6 Marnottar Report 35 7 Special Report for serious offence. 41 8 Inquest Panchnama. 52 9 Dispatch Note. 43 10 F.S.L. – Report 45 11 F.S.L. – Report 48 12 Serological Report 49 2.7 Thereafter, the statements of accused were recorded under Section 313 of the Cr.P.C., wherein the accused pleaded that they are falsely charged for the offence. After the conclusion of the trial, the 3rd Additional Sessions Judge, Diyodar convicted the appellants qua original accused Nos. 1 and 3 for the offence punishable under Sections 302, 201 read with Section 34 of the IPC and sentenced to undergo life imprisonment with fine, as aforesaid. Being aggrieved and dissatisfied by the impugned judgment and order of conviction and sentence, the appellants herein – original accused Nos. 1 and 3 have preferred the present appeal. 3. At the time of argument, Mr. Yogendra Thakore, the learned Counsel appearing for the appellants – original accused contended that the judgment and order of conviction is contrary to the provisions of law and against the evidence on record and hence, the same is required to be quashed and set aside. 3.1 It is contended that the complainant, prosecution witnesses and panch witnesses have turned hostile and have not supported the case of the prosecution. In such circumstances, it cannot be said that the prosecution has proved each and every circumstance independently beyond reasonable doubt. Therefore, the appellants are required to be acquitted. It is contended that the panchas have not supported the discovery panchnama and turned hostile. In such circumstances, it cannot be said that the prosecution has proved each and every circumstance independently beyond reasonable doubt. Therefore, the appellants are required to be acquitted. It is contended that the panchas have not supported the discovery panchnama and turned hostile. Therefore, the trial court ought not to have relied on the discovery panchnama. It is contended that from the FSL report the alleged muddmal weapon which was used in the commission of the crime was sent to FSL. No blood stains were found from the said weapon and therefore, the trial court ought to have granted benefit of doubt. It is contended that dead body was taken in Maruti car owned by the accused. The said vehicle was not seized by the Investigating Officer and therefore, the important link is totally missing in the case of the prosecution. It is contended that even if in a chain of circumstance, a sequel of chain is broken, the benefit goes in favour of the appellants. In a case on hand, the prosecution has failed to prove an important link and hence, the appeal is required to be allowed. It is contended that there is nothing to prove the motive of the appellants behind the commission of the crime. It is contended that the trial court has failed to consider that the case is not proved beyond reasonable doubt. It is contended that the judgment and order of the trial court is erroneous at law and deserves to be quashed and set aside. 4. While opposing this appeal, Mr. H.K. Patel, the learned APP appearing on behalf of the respondent – State, contended that there is sufficient evidence against the present appellants and therefore, the order of the trial court does not require any interference. It is contended that the appellants were shown the muddamal scythe and a wooden log. The clothes of the deceased were also found at the instance of the appellants-accused. The said is duly proved with the help of the deposition of the Investigating Officer, though the panchas has not supported the case of the prosecution. It is contended that as per the medical evidence, the injuries found on the dead-body of the deceased can be caused by scythe which is recovered by the Investigating Officer. It is contended that the place of incident was also shown by the appellants. It is contended that as per the medical evidence, the injuries found on the dead-body of the deceased can be caused by scythe which is recovered by the Investigating Officer. It is contended that the place of incident was also shown by the appellants. It was found that there were blood marks on the flooring prepared by cow-dung. Both the appellants had put a layer of the cow-dung on the floor and thereby they have tried to destroy the evidence. It is contended that the clothes of the deceased were also found at the instance of the appellants. The Investigating Officer has also recovered the wooden log on which the dead-body was placed and thereafter, it was cut into pieces. This fact is also rightly considered by the trial court, and therefore, the order of the trial court does not require any interference. It is contended that after committing the murder, the appellants had washed the scythe. The scythe was also recovered at the instance of the appellants. Hence, there is sufficient evidence to convict the appellants and therefore, the order of the trial court does not require any interference. 5. After considering the rival submissions and on perusal of the record, it appears that all the witnesses including the complainant have turned hostile and not supported the case of the prosecution. The trial court has relied on the discovery panchnama which is prepared by the prosecution. It also appears from the deposition of the Investigating Officer that the Investigating Officer had visited the place of offence a day before the panchnama was prepared. 5.1 The complainant – Khodabhai Raymalbhai Thakore is examined at Exh.11 (PW-1) and according to his deposition he had seen a crowd on the Meshpura-Taladar road. There was a plastic bag lying on one side of the road. He had informed the police. When the police opened the plastic bag, they found a dead-body of a male person in the plastic bag which was cut into pieces. From the appearance of the dead body, the dead-body appeared to be of a man of the age of 30 years. The complaint is produced at Exh.12. The complainant is not an eye-witness to the incident. He did not know anything about the incident except that the dead-body was found in the plastic bag lying on the road side. From the appearance of the dead body, the dead-body appeared to be of a man of the age of 30 years. The complaint is produced at Exh.12. The complainant is not an eye-witness to the incident. He did not know anything about the incident except that the dead-body was found in the plastic bag lying on the road side. 5.2 The panchmana of the place of offence is at Exh.- 15. The panch witness of the panchnama of the place of offence – Dineshbhai Nagjibhai Prajapati (PW-2) is examined at Exh.14 and another panch witness – Kersanbhai Ajmalbhai Prajapati (PW-3) is examined at Exh.16. Both the panchas have turned hostile and have not supported the case of the prosecution. The discovery panchnama is at Exh.18. The panch witness of the panchnama of the discovery – Govindbhai Khemabhai Patel (PW-4) is examined at Exh.17 and another panch witness – Virjibhai Mavjibhai Patel (PW-5) is examined at Exh.19. Both the panchas have turned hostile and not supported the case of the prosecution. As per the discovery panchnama, the accused had shown the weapon used in the commission of the offence, place of offence, a wooden log and clothes of the deceased with blood stains. The clotehs of the accused No.1 and a scythe were recovered. However, both the panchas have not supported the case of the prosecution. 5.3 The PW-6 – Dr. Ravindrabhai Bharatbhai Patel is a doctor. He has given his deposition at Exh.20. He is the doctor who had performed the post-mortem of the deceased - Bhaveshbhai Rajabhai Thakor and according to him the dead body was about 24 years of age. No clothes were found on the dead-body of the deceased. According to the doctor, the cause of death was due to injury in the spinal cord and brain injury. He had stated that he could give exact cause of death only after he receives a report from the FSL. According to him, such type of injury can be sustained by scythe. In his cross-examination, he has stated that there was a puncture would on the dead-body of the deceased and such a would cannot be inflicted with a scythe. He has stated that the dead-body was cut into seven pieces. There was no sharp cut injury on the head. According to him, he was not sure whether the injuries were anti-mortem or post-mortem. He has stated that the dead-body was cut into seven pieces. There was no sharp cut injury on the head. According to him, he was not sure whether the injuries were anti-mortem or post-mortem. 5.4 The PW-7 – Harjibhai Magabhai Patel has given his deposition at Exh.21. According to him, a bag was lying on the road side. The police has not recorded his statement. He has not given any name or car number to the police. He has also turned hostile. Another witness being the PW-8 – Shankarbhai Mansangbhai Patel is examined at Exh.22. According to him, he has not seen any bag or any dead-body. He has also turned hostile. The PW-9 – Rajabhai Mavjibhai Thakore (Exh.23) is the father of the deceased. He has also not supported the case of the prosecution. He has stated that he has neither given name of any of the accused nor he has given any car number. He has turned hostile. The PW-10 – Jodhabhai Ravjibhai Thakore has given his deposition at Exh.24. He has stated that he does not know anything about the incident. He has neither given name of any of the accused nor he has given any car number. He has turned hostile. The PW-11 – Bhanjibhai Punjabhai Patel has given his deposition at Exh.25. He has stated that he does not know anything about the incident. He has neither given name of any of the accused nor he has given any car number. He has also turned hostile. 5.5 The PW-12 – PSI Rajeshkumar Kantilal Parmar is an Investigating Officer (Exh.31). According to him, the complaint was received on 09.10.2016 and it was registered at Bhabhar Police Station. He had collected the sand with blood stains on it from the place of offence. He has also prepared recovery panchnama as the accused has agreed to show the place of offence and the weapon used in the commission of the offence. The accused has produced the scythe which was lying near the hedge of a farm. He had also shown the room where there was a flooring of cow-dung. According to him, he had put another layer of cow-dung on the flooring to hide the blood stains on it. The accused has produced the scythe which was lying near the hedge of a farm. He had also shown the room where there was a flooring of cow-dung. According to him, he had put another layer of cow-dung on the flooring to hide the blood stains on it. He had also shown the clothes of the deceased lying in the ditch near the hedge and one wooden log on which the dead -body was placed and cut into pieces with the help of scythe. He had shown one car bearing registration No.GJ-1-HB-2643. In the cross-examination, the Investigating Officer has admitted that he has visited the place of offence before he has prepared the panchnama. He has also admitted that he has not found any eye-witness to the incident. He has admitted that he has not collected any evidence about the ownership of the house, where the alleged offence was committed. He has admitted that he has not collected any weapon which could cause puncture wound. He has admitted that neither he has collected any blood sample of the accused and nor he has performed any DNA test of the deceased. 5.6 The PW-13 – Rameshbhai Gajabhai Patel (Exh.51) and the PW-14 – Ganpatbhai Jivabhai Solanki (Exh.53) are the inquest panchas. They have not supported the case of the prosecution. While, the PW-15 – Devsinh Khodabhai Kumbhar is the Circle Officer who has given his deposition at Exh.54. In his deposition he has stated that he had prepared the map of the place of offence. 5.7 The entire case hinges on circumstantial evidence. The trial court has solely relied on the discovery panchnama. It is observed by the trial court that the scythe and the clothes of the deceased were discovered at the instance of the accused No.1. The wooden log was discovered at the instance of the appellants-accused and blood stains were also found on the said wooden log. Although the panch witnesses turned hostile yet, the discovery panchnama is supported by the deposition of the Investigating Officer. It is held that the discovery panchnama could be said to have been proved by the Investigating Officer. The trial court has held that on the basis of the discovery panchnama, the involvement of the appellants is proved. Although the panch witnesses turned hostile yet, the discovery panchnama is supported by the deposition of the Investigating Officer. It is held that the discovery panchnama could be said to have been proved by the Investigating Officer. The trial court has held that on the basis of the discovery panchnama, the involvement of the appellants is proved. It is observed by the trial court that there is nothing in the cross-examination of the Investigating Officer that creates a doubt about the recovery panchnama. It is observed that as the scythe was cleaned with water, no blood stains were found on the scythe. With such observation the trial court has found the appellants guilty for the offence. 5.8 The circumstances on which the conviction of the appellant is founded are (a) presence of blood stains on the wooden log on the pointing out of the appellant; (b) recovery of clothes with blood stains of the deceased on the pointing out of the appellant; and (c) recovery of scythe and blood stains at the scene of offence. 5.9 We now come to the circumstance of recovery of the alleged materials on the pointing of the appellant. We have mentioned the circumstances and the manner in which this recovery was effected. Consequently we do not want to overburden this judgment by reiterating the relevant details. 5.10 However, we are constrained to observe that after the gravest circumspect we have reached the conclusion that the said recovery would not constitute incriminating evidence within the ambit of section 27 of the Evidence Act. The said section reads thus:--- "Section 27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." The said section is in exception to the provisions contained in sections 25 and 26 of the Evidence Act. The former makes a confession to a Police Officer inadmissible in law and the latter only admissible if made in the presence of a Magistrate. The former makes a confession to a Police Officer inadmissible in law and the latter only admissible if made in the presence of a Magistrate. 5.11 A perusal of section 27 of the Evidence Act would show that it is not recovery simplicitor at the instance of the accused from a certain place about which he has knowledge which would make the said recovery incriminating evidence. What would make it incriminating evidence is his statement that he had concealed the article sought to be recovered at a certain place and its recovery on his pointing out from that place. 5.12 If we examine the recovery of the blood-stained knife in the said perspective the said recovery would not be incriminating evidence within the meaning of section 27 of the Evidence Act. 5.13 In the recovery panchanama there is not even a whisper of the fact that it was the appellant who had concealed the cloth and the knife in the house from where it was to be recovered. 5.14 We are fortified in our view by the decision of the Supreme Court reported in 1980(1) S.C.C. 530 , (Pohalya Motya Valvi v. State of Maharashtra). A perusal of paragraphs 13, 14 and 15 would show that in the said case spear was recovered on the pointing out of the accused, but in the recovery memo there was no mention of authorship of its concealment by the accused and the fact that he gave information leading to its discovery. The Supreme Court in paragraph 16 held that this recovery was of no consequence. It made some observations in paragraph 15 which we feel are pertinent to extract. They read thus : “14. Now, there is serious controversy on the translation of the relevant portion of the statement alleged to have been made by the appellant reproduced in the contemporaneous record Ext. 28. The learned Sessions Judge has reproduced the original statement in Marathi language and then translated it as under: “That spear is kept hidden under the heap of grass which is just taken out and near the small plant of Hengal in the crop of the Jawar and towards southern side of my dwelling house. I am willingly ready to produce that spear.” 15. I am willingly ready to produce that spear.” 15. The High Court reads the statement as reproduced in its judgment as under:] “I give my true statement before the Panchas that (then comes the inadmissible portion which we do not consider proper to reproduce here)...that spear I have hidden in the grass in my field of Jawar to the southern side of my house. That spear I am ready to produce.” The High Court uses the pronoun ‘I’ at two places. We, with the assistance of both the learned counsel proficient in Marathi language read the original statement. The reading of the statement by the High Court appears to be far-fetched. Even the High Court is conscious of it when it observes in para 20 of the judgment that the authorship of the act of concealment of the spear would be implied and would be none other than the appellant, and then observes that this circumstance which is one of the strongest links stands duly established. The Marathi word “Me” is to be found at the commencement of the statement followed by the wholly inadmissible portion and then there is reference to the place where the spear was hidden. The Marathi expression “Thevalela” would more appropriately be translated “has been kept” and not “I have kept” because in the case of “Have kept it”, the Marathi word would be “Thevala”. It may be that being not conversant with Marathi language our translation may not be appropriate but if this recovery of bloodstained spear is the only important circumstance of an incriminating character established in this case and if the authorship of concealment is not clearly borne out by cogent and incontrovertible evidence but as the High Court observes left to be inferred by implication, we have considerable hesitation in placing implicit reliance upon it. More so when it is a confessional statement which becomes admissible under Section 27 of the Evidence Act though made in the immediate presence of a police officer. The recovery of a bloodstained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. And in this case Bhamta was another co-accused. And in this case Bhamta was another co-accused. The appellant may have only the knowledge of the place where it was hidden. To make such circumstance incriminating it must be shown that the appellant himself had concealed the bloodstained spear which was the weapon of offence and on this point the language used in the contemporaneous record Ext. 28 is not free from doubt and when two constructions are possible in a criminal trial, the one beneficial to the accused will have to be adopted. Therefore, this linchpin of the prosecution case ceases to provide any incriminating evidence against the appellant. (emphasis supplied)” 5.15 The coordinate Bench of this Court has also dealt with such situation. In a case of Patel Maganbhai Mavjibhai V. State of Gujarat (to which one of us, J.B. Pardiwala, J. was a party), 2013 (4) GLR 3215, where in it was noticed that so far as the oral evidence is concerned, almost all witnesses have turned hostile. The prosecution has not been able to prove a single panchnama including the most important piece of evidence i.e. Discovery Panchnama of the weapon of offence i.e. the axe. Both the panch witnesses of the discovery panchnama failed to prove the contents of the panchnama and were declared hostile. The Investigating Officer also failed to prove the contents of the discovery panchnama, and therefore, in our opinion, the Court below committed an error in relying on such a piece of evidence, treating it to be an incriminating piece of evidence. 5.16 It was held that it is clear that but for the fact that a blood-stained axe had been recovered at the information furnished by the accused, though not established by the evidence of any of the panch-witnesses, as they were declared as hostile witnesses, the prosecution cannot base conviction, more particularly when there is no other evidence in this case which goes to show that the appellant had a hand in the commission of this crime. 5.17 There is only circumstance namely the recovery of weapon, a wooden log with blood stains, clothes of the appellant and clothes of the deceased on the pointing out of the appellant. As we have mentioned earlier, these recoveries beyond the pale of doubt. We have gone through the relevant evidence. 5.17 There is only circumstance namely the recovery of weapon, a wooden log with blood stains, clothes of the appellant and clothes of the deceased on the pointing out of the appellant. As we have mentioned earlier, these recoveries beyond the pale of doubt. We have gone through the relevant evidence. The learned council for teh appellant has drawn our attention towards the fact that the investigating officer has admitted in his cross examination that he had visited the place of the discovery panchnama before a day. It is a circumstance which goes against the prosecution. In this regard we would like to refer the judgment of this Court (to which one of us, J.B. Pardiwala, J. was a party), Kanubhai Shanabhai Gamechi V. Sate of Gujarat this Court has decided evidentiary value could be attached to discovery where fact was already known to police. It is held that :- “49. What is important is not as to on which date the body of the deceased was taken out from the well i.e. whether on 21st September, 2005 or 22nd September, 2005. The crucial question is how did the police derive the knowledge that the child had been thrown away in a well on 21st September, 2005. At least one thing is quite evident that the police had prior knowledge of the place where the deceased was thrown away in the well. 50. If that be so, then what will be the evidentiary value of the discovery panchnama Exh. 23 drawn in terms of Sec. 27 of the Evidence Act. In our opinion, no evidentiary value could be attached to such a piece of evidence for the simple reason that a fact which has already been discovered and if any information given in that behalf afterwards cannot be said to have lead to the discovery of the fact. There cannot be a rediscovery. If the fact was already known to the police there cannot be a discovery again of that fact as a result of a statement made by the accused subsequent to the original discovery. 51. Once, a fact is discovered from other sources, there can be no fresh discovery even if the relevant information is extracted from the accused and the Courts have to be watchful against the ingenuity of the Investigating Officer in this respect so that the protection afforded by the wholesome provisions of Secs. 51. Once, a fact is discovered from other sources, there can be no fresh discovery even if the relevant information is extracted from the accused and the Courts have to be watchful against the ingenuity of the Investigating Officer in this respect so that the protection afforded by the wholesome provisions of Secs. 25 and 26 of the Evidence Act that it is not whittled down by the mere manipulation of the record of case diary. 52. It would, in the circumstances, be somewhat unsafe to rely of this information for proving the appellant's guilt.” 5.18 We have come across many cases where the trial court has relied discovery panchnama and without taking proper care to record the deposition of the witness. The trial Court should bear in mind that mere proof of panchanama as a document itself is not sufficient and the contents of the panchanama viz. the statements of accused under section 27 of the Evidence Act must be proved and brought on record by the witnesses in their oral testimony. The trial court should not permit summary of the evidence of the witnesses to go on record in so far as the oral evidence is in respect of section 27 of this Act. Whatever witnesses [panch or Investigating Officer] state in the Court in this regard as the words of the accused or the statements of the accused should be taken down in its full original form. There should be no abridging in that regard while recording the evidence. 5.19 In our view, the circumstantial evidence adduced by the prosecution does not prove the guilt of the appellant for offences punishable under sections 302 and 201 of the Indian Penal Code. 6. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 26th July, 2018 passed by the 3rd Additional Sessions Judge, Banaskantha at Diyodar, in the Sessions Case No.3 of 2017 is hereby quashed and set aside and the appellants are acquitted of the offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. The appellants – Rameshbhai Babubhai Thakore (original accused no.1) and Sonalben Rameshbhai Thakore (original accused no.3) are ordered to be released forthwith, if not required in any other case.