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2021 DIGILAW 66 (GUJ)

Ganpatji Sartanji Thakore v. State of Gujarat

2021-01-25

A.C.RAO, A.J.DESAI

body2021
JUDGMENT : A.J. DESAI, J. 1. By way of present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) the appellant/convict - Ganpatji Sartanji Thakore has requested to quash and set aside the impugned judgment and order dated 08.03.2013 passed by the learned 3rd Additional Sessions Judge, Deesa, District Banaskantha in Sessions Case No. 8 of 2010, by which the appellant/accused has been convicted for the offence punishable under Sections 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) sentenced to undergo life imprisonment with fine of Rs. 20,000/- and in default of payment of fine to undergo further 6 months’ RI and also under Section 135 of the Bombay Police Act and sentenced to undergo one year simple imprisonment with fine of Rs. 2000/- and in default of payment of fine, to undergo one month’s simple imprisonment. 2. The short facts arising from the record of the case are as follows. 2.1 That, one K.M. Chaudhary, Police Sub Inspector, Sihori Police Station, who was also in charge of Thara Police Station, lodged an FIR being I-CR No. 92/2009 with Sihori Police Station on 10.09.2009 at 00.15 hours against unknown persons for the offences punishable under Sections 302 and 34 of the IPC as well as Section 135 of the Bombay Police Act. It was alleged by said PSI Mr. Chaudhary that one Head Constable of Thara Police Station viz. Md. Sharif Ibrahim informed him on telephone that in the sim of village Katadia a dead-body is lying in the field of one Gagaji. The said phone call was received by him on 09.09.2009 and a Janva Jog Entry No. 42/2009 was posted by the PSO at around 16.00 hours. Two police personnel, one ASI and another unarmed Head Constable went to the place where the dead-body was lying. It was found from the dead-body that the deceased had sustained injuries on face as well as on his hands and legs. A mobile of NOKIA company which was in working condition was also found from the pocket of the deceased. At that time, one Jyotsnaben wife of Meruji Valaji Thakore came at the place where the dead-body was lying and she identified the dead-body as that of her husband viz. Meruji Valaji Thakore. A mobile of NOKIA company which was in working condition was also found from the pocket of the deceased. At that time, one Jyotsnaben wife of Meruji Valaji Thakore came at the place where the dead-body was lying and she identified the dead-body as that of her husband viz. Meruji Valaji Thakore. Accordingly, inquest panchnama was prepared on the spot i.e. on 09.09.2009, certain injuries were recorded in the inquest panchnama and videography was also done. 2.2 Since the dead-body was lying in bushes and the complainant-police officer thought that the dead-body may be destroyed by animals, the same was taken to the hospital in a jeep alongwith Jyotsanaben wife of the deceased as well as her father. 2.3 At that time the family members including the wife of the deceased was asked about their intention to lodge the FIR, however they did not come forward and ultimately the FIR came to be lodged at the time mentioned hereinabove. 2.4 Further investigation was handed over to another officer who as per his say gathered information and found the appellant-accused having committed the murder since the appellant had relationship with the wife of the deceased and wanted to elope with her. 2.5 The appellant herein came to be arrested on 12.09.2009. On completion of investigation, charge-sheet came to be filed for the aforesaid offences and charge-sheet came to be submitted before the learned Judicial Magistrate First Class and as the case was sessions triable, the learned JMFC in turn committed the case to the Court of Sessions. 2.6 The charge (Exh.5) came to be framed by the learned Additional Sessions Judge on 25.03.2010. The appellant accused denied the charges and therefore, trial proceeded. 2.7 During the pendency of the trial and subsequent to recording of deposition of Jyotasnaben, the charge was modified on 21.04.2011 and offence under Section 376 of the IPC was added against the appellant herein. 2.8 The prosecution examined in all 19 witnesses and produced several documents. The appellant-accused did not examine any witness. 2.9 The learned Sessions Judge after examining the evidence led by the prosecution, acquitted the appellant herein for the offence punishable under Section 376 of the IPC, however held the appellant-accused guilty and convicted him for the offence punishable under Section 302 of the IPC and sentenced the appellant-accused to undergo life imprisonment with fine of Rs. 2.9 The learned Sessions Judge after examining the evidence led by the prosecution, acquitted the appellant herein for the offence punishable under Section 376 of the IPC, however held the appellant-accused guilty and convicted him for the offence punishable under Section 302 of the IPC and sentenced the appellant-accused to undergo life imprisonment with fine of Rs. 20,000/- and in default of payment of fine, to undergo further 1 year simple imprisonment and also under Section 135 of the Bombay Police Act and sentenced to undergo one year simple imprisonment with fine of Rs. 2000/- and in default of payment of fine, to undergo one month’s simple imprisonment. Hence, present criminal appeal. 3. Learned advocate Mr. Tejas Barot appearing for the appellant-accused has vehemently submitted that the case is based on circumstantial evidence and in absence of complete chain of evidence to bring the charge home, the learned Sessions Judge has committed error in convicting the appellant for the offence punishable under Section 302 of the IPC. He would further submit that the trial Court has also erred in accepting the say of two witnesses against whom it is alleged that the appellant-accused had made extrajudicial confession about the commission of offence. 3.1 He would further submit that even the prosecution has miserably failed to establish the motive as alleged and therefore also, the trial Court ought not to have convicted the appellant. 3.2 By elaborating his submissions, learned advocate Mr. Tejas Barot appearing for the appellant would first submit that it is an undisputed fact that the dead-body of the deceased was found from the field of Gagaji on 09.09.2009 at around 4 O’ Clock. He would submit that one Bharatji Shambhuji (PW-16, Exh.50), who saw the dead-body first, informed the concerned officer of Thara Police Station about the same, which has been recorded by the PSO of Thara Police Station viz. Md. Sharif Ibrahimbhai (PW-17, Exh.51) who in turn recorded the Entry No. 42/2009 at Exh.52 and informed the complainant PSI Mr. K.M. Chaudhary to visit the place and accordingly the entry was recorded at 15.57 hours (Exh.53). He would submit that as per the say of Bharatji Shambhuji (PW-16), the phone which was lying in the pocket of the deceased was ringing. K.M. Chaudhary to visit the place and accordingly the entry was recorded at 15.57 hours (Exh.53). He would submit that as per the say of Bharatji Shambhuji (PW-16), the phone which was lying in the pocket of the deceased was ringing. He would submit that though the police personnel were aware about the dead-body having been found between 17.30 to 19.00 hours, no panchnama of scene of offence was prepared. The said panchnama of scene of offence (Exh.13) was prepared only on the next day i.e. on 10.09.2009 between 8.15 to 12.30 hours. He would further submit that further investigation was handed over to one Mr. A.H. Desai who was working as PSI of Thara Police Station on 10.11.2009. The said PSI was examined as PW-19 at Exh.65. The said PSI recorded the statements of Jyotsanaben - wife of the deceased, father in law of the deceased and several neighbors of the deceased. He would submit that the appellant came to be arrested on 12.09.2009 only, on the basis of some internal information received by the said PSI. He would further submit that arrest panchnama was prepared on the same day, however no incriminating evidence was found from the person of the appellant or no discovery or recovery was made at the instance of the appellant. He would submit that even the dog squad has failed to pinpoint any involvement of the appellant. He would further submit that it is the case of the prosecution that the deceased was attacked by bricks on his head, however no blood stains have been found on the clothes of the appellant herein. 3.3 He would further submit that the prosecution after recording the statements of two witnesses viz. Amraji Pradhanji (PW-5, Exh.25) and Vishnuji Ravaji (PW-8, Exh.28) has tried to establish a case that the deceased was poisoned at the instance of the appellant herein and therefore, has tried to investigate in that line. However, after receiving the postmortem note, it was found that the deceased was murdered by throttling. Amraji Pradhanji (PW-5, Exh.25) and Vishnuji Ravaji (PW-8, Exh.28) has tried to establish a case that the deceased was poisoned at the instance of the appellant herein and therefore, has tried to investigate in that line. However, after receiving the postmortem note, it was found that the deceased was murdered by throttling. He would submit that the FSL report (Exh.74) indicates that no poison was found from the viscera of the deceased and therefore, the prosecution miserably failed in establishing that initially the deceased was poisoned at the instance of the appellant who brought poison which is known as poison for killing rats and which was purchased from a shop of Thara which belongs to one Mehmudaben Abdulbhai (PW-11, Exh.43). He would further submit that the Investigating Officer did not arrange for any Test Identification Parade of the accused to establish the fact that poison was purchased by the appellant from the shop of the said Mehmudaben Abdulbhai. He would submit that she has admitted in her cross-examination that some poisonous substance which was found in a sachet from the place of incident is available in several shops of the village. In such circumstances the trial Court ought to have discarded the version of said Mehmudaben Abdulbhai. 3.4 He would further submit that the prosecution has tried to establish the case that the deceased was called on his mobile by the appellant herein who has used the mobile of Vishnuji Ravaji (PW-8, Exh.28). However, the prosecution has miserably failed in establishing that any conversation had taken place between the mobiles of deceased as well as said Vishnuji Ravaji. He would submit that the Investigating Officer has admitted in his cross-examination that his officer in predecessor has collected some data about the phone calls, however the same has neither been produced on record with the charge-sheet papers nor any witness has been examined by the prosecution in support of the same. He would submit that the Investigating Officer has admitted in his cross-examination that his officer in predecessor has collected some data about the phone calls, however the same has neither been produced on record with the charge-sheet papers nor any witness has been examined by the prosecution in support of the same. He would submit that in absence of any direct evidence in nature of eyewitness or otherwise, if the prosecution relies upon various circumstantial evidence, as held by Hon’ble Apex Court, this Court and various High Courts in several decisions, entire chain of circumstantial evidence gathered and proved by the prosecution should be of such a nature that it can be conclusively established that the accused is the only person who had committed the offence and there are no possibilities of involvement of any third person. 3.5 He would further submit that a piece of sachet of rat poison was found near the dead-body and therefore, initially the prosecution tried to develop a story that the deceased was poisoned and thereafter throttled, however the serological report with regard to poison does not support the case of the prosecution and therefore, the witness viz. Mehmudaben Abdulbhai from whose shop the poison was alleged to have been purchased by the appellant is falsified and therefore, it is submitted that the said Mehmudaben Abdulbhai ought not to have been believed by the trial Court. In support of the above submissions, learned advocate Mr. Tejas Barot has relied upon the decision of the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and would submit that when the prosecution has failed to establish the chain of circumstances, which would involve the present appellant, he shall be acquitted. 3.6 Learned advocate Mr. Barot in his second submission with regard to motive of the crime submits that the reason for committing the murder of the deceased i.e. affair of the wife of the deceased with the present appellant is not proved and the same would add to the failure of prosecution to bring home the charge under Section 302 of the IPC against the appellant herein. He would submit that the prosecution had alleged that the wife of the deceased Jyotsnaben (PW-10, Exh.31) had affair with the appellant and the appellant had tried to commit rape on her before the incident of murder. He would submit that the prosecution had alleged that the wife of the deceased Jyotsnaben (PW-10, Exh.31) had affair with the appellant and the appellant had tried to commit rape on her before the incident of murder. Except her say before the Court in her deposition, there is no other evidence led by the prosecution in this regard. He would submit that as submitted earlier, the wife of the deceased had not shown readiness and willingness to lodge the FIR at initial stage and therefore, police personnel had filed the FIR against unknown person, however the appellant has been wrongly booked as an accused in the present offence and therefore, the observation of the trial Court about motive is required to be quashed and set aside. Having been failed to establish about any relationship between Jyotsnaben and appellant or any incident of rape, trial Court has rightly acquitted the appellant for the offence under Section 376 of the IPC against which there is no appeal. 3.7 He would further submit that heavy reliance has been placed by the prosecution on so-called extrajudicial confession made by the appellant herein before the two witnesses viz. Amraji Pradhanji (PW-5, Exh.25) and Vishnuji Ravaji (PW-8, Exh.28). By taking us through the deposition of the aforesaid two witnesses, he would submit that their depositions are required to be discarded in view of their conduct. After having come to know about the dead-body lying in the field, though both these witnesses were aware on 09.09.2009 itself that the dead-body of the deceased was lying in the field and had visited the field and when they visited the field, police personnel were present, none of them disclosed about any so-called confession made by the appellant on 09.09.2009 itself. They have disclosed the same before the police authority only after 4 days i.e. 12.09.2009. He would submit that the prosecution having miserably failed, in gathering any material evidence, such statements have been recorded. He would submit that even the so-called extrajudicial confession before the aforesaid two witnesses as per their say was given by the appellant when the appellant was in drunk condition and therefore, the appellant was not in a fit state of mind and therefore, the said so-called extrajudicial confession by the appellant ought not to have been relied upon by the learned trial Court. By taking us through the cross-examination of Amraji Pradhanji, he would submit that this witness has admitted that when he went to the field where the dead-body was lying, he had seen the police however he did not inform the police about the statement made by the appellant about the commission of crime. He would further submit that Amraji Pradhanji admitted that his statement was recorded after a period of four days, however he did not inform anybody about the so-called confession by the appellant. 3.8 By taking us through the deposition of Vishnuji Ravaji (PW-8), he would submit that extrajudicial confession was made in the nature that the appellant had poisoned the deceased, however in his cross-examination the said witness has admitted that no such statement was given by him during the investigation and his statement was recorded. He would submit that the said Vishnuji Ravaji has stated that the present appellant had used his mobile on the date of incident and by recording such deposition in chief, the prosecution has tried to establish that the appellant had called on the mobile of the deceased from the mobile phone of the said witness viz. Vishnuji Ravaji and called the deceased at the place of incident where the appellant committed the crime in question. However, in absence of no such call details, the deposition of the said witness ought not to have been believed by the trial Court. 3.9 He would further submit that extrajudicial confession is the evidence of a nature of hearsay and therefore, by other circumstantial evidence it is the duty of the prosecution to prove the complete chain of events which may undoubtedly point towards the guilt of the accused and if the Court intends to hold a person guilty for an offence, such confession is required to be made with a greater degree of care and caution. This principle has been laid down by the Hon’ble Apex Court in catena of decisions. In support of his submission, learned advocate Mr. Barot has relied upon the decision of Hon’ble Apex Court in the case of Sahadevan and Another vs. State of Tamil Nadu, (2012) 6 SCC 403 . He has also relied upon an unreported decision dated 07.04.2014 of the Division Bench of this Court rendered in Criminal Appeal Nos. 1036/2009 and 1037/2009 in the case of Chimanbhai Bhuliyabhai Nayak vs. State of Gujarat. He has also relied upon an unreported decision dated 07.04.2014 of the Division Bench of this Court rendered in Criminal Appeal Nos. 1036/2009 and 1037/2009 in the case of Chimanbhai Bhuliyabhai Nayak vs. State of Gujarat. He, therefore, would submit that the appeal be allowed and appellant be set at liberty forthwith. 4. On the other hand, learned APP Mr. R.C. Kodekar appearing for the respondent – State of Gujarat has opposed this appeal and would submit that the witnesses are rustic villagers and therefore, ordinarily it is presumed that they might be afraid of police and therefore, may not have informed the police about the alleged crime. 4.1 He would submit that the wife of the deceased viz. Jyotsanaben has not immediately come forward for recording the FIR, however subsequently she has come forward with a specific case that the appellant had committed rape on several occasions prior to the date of murder and that the appellant was insisting her to elope with him which she had denied and therefore, her husband has been killed. He would further submit that the prosecution was able to establish the motive behind the crime since the wife of the deceased had categorically stated that she was not ready to elope with the appellant though she was subjected to rape on several occasions and therefore, the best way for the appellant to elope with the lady, was to remove the hindrance in nature of her husband. 4.2 By taking us through the deposition of Jyotsanaben (PW-10, Exh.31), he would submit that she has categorically stated about the incident of rape on several occasions by the appellant. He would submit that the trial Court has rightly relied upon the extrajudicial confession by the appellant before two witnesses viz. Amraji Pradhanji and Vishnuji Ravaji. He would submit that a person can be convicted if he has made extrajudicial confession before the witnesses who are reliable and trustworthy. By taking us through the depositions of the aforesaid two witnesses, he would submit that the said two witnesses are reliable witnesses and there is no reason not to believe both of them since they are neither related to the deceased nor allegations have been made that they have any animosity with the appellant. He, therefore, would submit that the appeal be dismissed. 5. We have heard learned advocates appearing for respective parties at length. He, therefore, would submit that the appeal be dismissed. 5. We have heard learned advocates appearing for respective parties at length. Perused the Record and Proceedings of the case and have gone through the deposition of the witnesses examined by the prosecution as well as the reasoning assigned by the trial Court while convicting the appellant for the offence punishable under Section 302 of the IPC. 5.1 It is an undisputed fact that one Bharat Shambhuji (PW-16, Exh.50) informed the Thara Police Station about having found a dead-body on 09.09.2009, which was recorded at around 16.00 hours as Janva Jog Entry No. 42/2009 (Exh.52). The PSO of Thara Police Station while making entries in the record (Exh.53) has categorically stated that a mobile was found in the pocket of the dead-body and accordingly he had informed Mr. K.M. Chaudhary who was in charge of Thara Police Station at the relevant time. He visited the place forthwith i.e. on 09.09.2009 and started the investigation. As per the deposition of said Mr. K.M. Chaudhary (PW-2, Exh.15), when he visited the place where the dead-body of a man was found, he saw certain injuries on the said dead-body. A NOKIA mobile phone in working condition was found from the pocket of the deceased and at that time wife of the deceased viz. Jyotsanaben visited the place and identified the body as that of her husband. Videography was also done and dead-body was removed from the said place to the nearest hospital. Inquest panchnama (Exh.16) was made at around 17.30 to 19.00 hours on the same day. He has admitted in his cross-examination that neither Jyotsanaben nor her father (father in law of the deceased), who were present at the scene of offence as well as at the hospital, had neither shown their readiness and willingness to lodge an FIR against any person, nor disclosed anything about the involvement of or any doubt was raised against the applicant. 5.2 On 11.11.2009, further investigation was handed over to one Mr. A.H. Desai (PW-19, Exh.65) who carried out further investigation. As per his deposition, he found some information through his informant (Batmidar) about the alleged involvement of the appellant. 5.2 On 11.11.2009, further investigation was handed over to one Mr. A.H. Desai (PW-19, Exh.65) who carried out further investigation. As per his deposition, he found some information through his informant (Batmidar) about the alleged involvement of the appellant. The panchnama of scene of offence was made on the next day i.e. on 10.09.2009 and during that investigation, sachet of rat poison was found and broken pieces of bricks were also found from the place where the dead-body was lying. The appellant came to be arrested on 12.09.2009 and during the preparation of arrest panchnama, nothing incriminating was found from the person of the appellant. If we scrutinize the cross-examination of this witness viz. Mr. A.H. Desai, he has categorically admitted that during his investigation no material was found with regard to the love affair between Jyotsanaben and the appellant herein. He has admitted that though the dog squad panchnama was made, nothing incriminating or no information was found till he received the investigation on 11.09.2009. In response to a pertinent question put to the said witness about the call details, he has answered that though some evidence was collected by his predecessor, he has not made those documents the part of the charge-sheet. He has also admitted that Vishnuji Ravaji has not stated anything about any phone calls made by the appellant from his mobile phone. In such scenario of the facts, we have again closely scrutinized the deposition of Jyotsanaben, however she has not stated anything, except her statement about the so-called offence of rape and that too for the first time before the Court and appellant has been acquitted for the amended charges of section 376 of the IPC and in absence of any appeal by the State, the trial Court was right in acquitting the appellant for the offence punishable under Section 376 of the IPC. 5.3 When the Court has not believed the story of so-called commission of rape on several occasions, in absence of any other material, in our opinion the prosecution has miserably failed to establish the motive alleged in the charge. It is true that even in absence of motive, if the prosecution establishes the case by different type of evidence to hold a person guilty of an offence, the Court is supposed to examine the evidence led by the prosecution before the trial Court. It is true that even in absence of motive, if the prosecution establishes the case by different type of evidence to hold a person guilty of an offence, the Court is supposed to examine the evidence led by the prosecution before the trial Court. It is an undisputed fact that the present case lies only on circumstantial evidence. As stated hereinabove, the prosecution has tried to initially develop its case that at the instance of the appellant, the deceased was poisoned and subsequently throttled, however no poison is found from the viscera of the deceased. That, the lady Mehmudaben Abdulbhai was never called for any test identification of the appellant in connection with the so-called purchase of sachet of rat poison. It appears from the record that after the arrest of the appellant, he was taken by the police to her shop on his statement that he had purchased the rat poison from the shop of the said lady. In our opinion, the investigating agency ought to have carried out the Test Identification Parade to strengthen the case. As stated hereinabove, the deceased had sustained injuries on the head by bricks and said bricks were having blood stains of the deceased, however the clothes which were discovered at the instance of the appellant are not found to have any blood stains. There is no investigation or any material produced on record with regard to the story put forth by the appellant about the mobile calls between the appellant and the deceased or any call between Vishnuji Ravaji and deceased though the mobile of the deceased was found in the pocket of the deceased. Though the witnesses have stated that the appellant was residing with his family in nearby area of the place of incident, no material has been produced on record. Therefore, in our opinion, the investigating agency has miserably failed in establishing any circumstance apart from incomplete chain of circumstances about the involvement of the appellant herein. 5.4 In case of Sahadevan (Supra), after examining its several earlier decisions, the Hon’ble Supreme Court in paragraph Nos. 13 and 14 has observed as follows: “13. There is no doubt that in the present case, there is no eyewitness. It is a case based upon circumstantial evidence. 5.4 In case of Sahadevan (Supra), after examining its several earlier decisions, the Hon’ble Supreme Court in paragraph Nos. 13 and 14 has observed as follows: “13. There is no doubt that in the present case, there is no eyewitness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon an extrajudicial confession, the court has to examine the same with a greater degree of care and caution. 14. It is a settled principle of criminal jurisprudence that extrajudicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extrajudicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.” 5.5 In the case of Sharad Birdhichand Sarda (Supra), the Hon’ble Apex Court in paragraph Nos. 152 and 153 has held as follows: “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant vs. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi vs. State of Uttar Pradesh and Ramgopal vs. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: “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 163 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 far 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.” 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: (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 and Another vs. State of Maharashtra where the following observations were made: 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. (4) They should exclude every possible hypothesis except the one to be proved and 164. (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.” As stated hereinabove, the prosecution has miserably failed by bringing the fact on record to establish that only and only the appellant is accused of having committed the offence and is of conclusive nature. The chain is not complete and therefore, the appellant would be entitled for acquittal. The chain is not complete and therefore, the appellant would be entitled for acquittal. 5.6 Now, examining the depositions of Amraji Pradhanji and Vishnuji Ravaji before whom the extrajudicial confession has been made by the appellant, in our opinion, the same are not trustworthy particularly considering their conduct and improvement in their depositions. Though Amraji Pradhanji had immediately visited the place of incident and when he found the dead-body, it is expected from a person, who might be a rustic villager, that he would immediately inform about the so-called confession. He has admitted that his statement was recorded after a period of 4 days from the date of incident and for the first time he disclosed before the police about the so-called confession by the appellant. Similar is the case of Vishnuji Ravaji who has improved a lot in his deposition though he has not stated before the police that appellant had requested to use the phone of Vishnuji and accordingly, called someone, is falsified by the Investigating Officer. He has admitted in his cross-examination that the statement with regard to poisoning the deceased at the instance of the appellant was not stated before the police and therefore, there is improvement before the Court. In such circumstances, the alleged extrajudicial confession which is of hearsay nature is required to be examined with greater degree of care and caution. 5.7 With regard to the principle laid down by the Hon’ble Apex Court in the case of Sahadevan and Another (Supra), while dealing with extrajudicial confession, the Hon’ble Supreme Court has laid down several principles and has held that extrajudicial confession is a weak evidence by itself. It should inspire confidence. It must have greater credibility etc. The Hon’ble Apex Court while dealing with the issue of extra judicial confession has held as under: “15. Now, we may examine some judgments of this Court dealing with this aspect. 15.1. In Balwinder Singh vs. State of Punjab this Court stated the principle that: (SCC p. 265, para-10) “10. An extrajudicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.2. An extrajudicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.2. In Pakkirisamy vs. State of Tamil Nadu, the Court held that: (SCC p.162, para-8) “8....It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extrajudicial confession.” 15.3. Again in Kavita vs. State of Tamil Nadu, the Court stated the dictum that: (SCC p.109, para-4) “4. There is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made.” 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, this Court in State of Rajasthan vs. Raja Ram stated the principle that: (SCC p.192, para-19) “19. An extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” The Court, further expressed the view that: (SCC p.192, para-19) “19....Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused....” 15.5. In the case of Aloke Nath Dutta vs. State of West Bengal, the Court, while holding the placing of reliance on extrajudicial confession by the lower courts in absence of other corroborating material, as unjustified, observed: (SCC pp. 265-266, paras 87 and 89) “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. In the case of Aloke Nath Dutta vs. State of West Bengal, the Court, while holding the placing of reliance on extrajudicial confession by the lower courts in absence of other corroborating material, as unjustified, observed: (SCC pp. 265-266, paras 87 and 89) “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession. (ii) truthfulness of the confession. (iii) corroboration. xxx xxx xxx 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.” 15.6. Accepting the admissibility of the extrajudicial confession, the Court in the case of Sansar Chand vs. State of Rajasthan held that: (SCC p.611, paras 29-30) “29. There is no absolute rule that an extrajudicial confession can never be the basis of a conviction, although ordinarily an extrajudicial confession should be corroborated by some other material. [Thimma and Thimma Raju vs. State of Mysore, Mulk Raj vs. State of Uttar Pradesh, Sivakumar vs. State, Shiva Karam Payaswami Tewari vs. State of Maharashtra and Mohd. Azad vs. State of West Bengal] 30. In the present case, the extrajudicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872.” 15.7. Dealing with the situation of retraction from the extrajudicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod vs. State of Gujarat held as under: (SCC pp.772-773, para-53) “53. It appears therefore, that the appellant has retracted his confession. When an extrajudicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. It appears therefore, that the appellant has retracted his confession. When an extrajudicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.” 15.8. Extrajudicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extrajudicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf vs. State of West Bengal and Pancho vs. State of Haryana] The principles 16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused: (i) The extrajudicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extrajudicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (iii) It should inspire confidence. (iv) An extrajudicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 5.8 The coordinate Bench of this Court in the case of Chimanbhai Bhuliyabhai Nayak (Supra) has also relied upon several decisions including the decision of the Hon’ble Apex Court in the case of Sahadevan and Another (Supra) and has reiterated the principle of examining the witnesses and the reliability of witnesses before whom extrajudicial confessions have been made. 5.9 In view of above all aspects, we have no doubt that the trial Court has committed an error in convicting the appellant in absence of any proved motive, completion of chain of circumstantial evidence as well as accepting the extrajudicial confession made by the appellant. 6. In the result and as per the above mentioned circumstances, Criminal Appeal is allowed. The impugned judgment and order dated 08.08.2013 passed by the learned 3rd Additional Sessions Judge, Deesa, District Banaskantha in Sessions Case No. 8 of 2010, whereby the appellant is convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code, 1860 and section 135 of the Bombay Police Act, is hereby quashed and set aside and the appellant is hereby acquitted. If the appellant/accused-Ganpatji Sartanji Thakore is not required in any other offence, he may be released forthwith. Registry is directed to send the R&P to the concerned Trial Court forthwith.