THAKORE UMEDSING NATHUSINGversusSTATE OF GUJARAT

                 [2024] 2 S.C.R. 1178 : 2024 INSC 198

                     Thakore Umedsing Nathusing
                                  v.
                           State of Gujarat
                      (Criminal Appeal No. 250 of 2016)
                               22 February 2024
                [B.R. Gavai and Sandeep Mehta,* JJ.]

                            Issue for Consideration
       Scope of interference by High Court in an appeal challenging
       acquittal of the accused by the trial Court; standard of proof required
       to bring home charges in a case based purely on circumstantial
       evidence.

                                    Headnotes
       Code of Criminal Procedure, 1973 – s.378(1)(b) – Appeal in
       case of acquittal – Interference by High Court – Scope –
       Prosecution’s case that the accused persons took the jeep
       of the victim-deceased on hire and thereafter they murdered
       the victim and looted the jeep – Appellants-accused were
       convicted and sentenced for offence punishable u/s.392, IPC
       however, were acquitted u/s.302 r/w s.34 and ss.396 and 397,
       IPC – High Court reversed the acquittal and convicted them
       for offences punishable u/ss.302, 396, IPC and sentenced
       accordingly – Correctness:
       Held: No direct evidence was led to bring home the charges
       against the accused and the entire case of prosecution was based
       on circumstantial evidence – Prosecution miserably failed to lead
       reliable, tangible and convincing links forming a complete chain
       of incriminating circumstances so as to bring home the guilt of the
       accused for the charge of murder punishable u/s.302 – Further,
       while reversing the acquittal of the accused recorded by the trial
       Court for the charges u/s.302 r/w s.34 and ss.396, 397, the High
       Court did not record any such finding that the view taken by the
       trial Court based on appreciation of evidence was either perverse
       or it was not one of the permissible views favouring the acquittal
       of the accused – Thus, the impugned judgment falls short of the
       satisfaction mandatorily required to be recorded for reversing
       a judgment of acquittal and converting it to one of conviction –

* Author
[2024] 2 S.C.R.                                                             1179

            Thakore Umedsing Nathusing v. State of Gujarat


     Judgment of the High Court is based on conjectures and surmises
     rather than on any substantive or reliable circumstantial evidence
     pointing exclusively to the guilt of the accused – Judgment of the
     trial Court, convicting and sentencing the accused for offence
     u/s.392 is also based on the same set of inadmissible and unreliable
     links of circumstantial evidence, and the impugned judgment of
     the High Court are quashed and set aside – Appellants acquitted.
     [Paras 22, 37, 38-41]
     Evidence – Circumstantial evidence – Standard of proof –
     Prosecution case that the accused persons had taken the jeep
     of the victim-deceased on hire and thereafter they murdered
     the victim and looted the jeep – Case of prosecution based
     entirely on circumstantial evidence:
     Held: Prosecution relied upon the circumstantial evidence
     comprising of disclosures, recoveries and discoveries for bringing
     home the guilt of the accused – The most important recovery was
     allegedly of the jeep – The said recovery was attributed to A1,
     who was allegedly apprehended by PSI (PW-22) – He forwarded
     a report/communication (Exhibit-96) to the officer in-charge of
     the Sardarnagar Police Station wherein, the confession made by
     A1 implicating himself and the other accused was recorded – So
     called disclosure statement made by A1 (Exhibit-96) on which
     the prosecution banked upon and the High Court relied upon by
     treating it to be an incriminating circumstance against the accused
     persons was inadmissible, unworthy of reliance and doubtful and
     cannot be read in evidence against the other accused i.e. A2, A3
     and A5 – Exhibit-­96 being hit by s.25, Evidence Act cannot be
     read in evidence for any purpose whatsoever – The prosecution
     pinned the identity of A2, A3, and A5 as the assailants on the
     basis of the disclosure statement (Exhibit­-96) of A1 – They were
     primarily convicted on the basis of the recoveries of knives and
     clothes – These so called incriminating articles allegedly recovered
     at the instance of the accused were never sent to the Serology
     expert for comparison of the blood groups existing thereupon with
     the blood group of the deceased – Evidence of the concerned
     police officials associated with the recoveries and their testimonies
     were highly doubtful – The knife which was recovered at the
     instance of A3 was found from a nala which is a place open and
     accessible to all – The knife attributed to A4 cannot be linked
     to him – Recoveries were highly doubtful and tainted – These
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    recoveries in no manner can be treated to be incriminating in
    nature – Even if it is assumed that such recoveries were effected,
    the same did not lead to any conclusive circumstance in form of
    Serological report establishing the presence of the same blood
    group as that of the deceased and hence they do not further the
    cause of prosecution – Prosecution failed to lead the link evidence
    mandatorily required to establish the factum of safe keeping of the
    muddamal articles and hence, the recoveries became irrelevant.
    [Paras 26-28, 30, 34-36]
    Evidence – Confession of one co-­accused against the other
    – Evidentiary value – Such statement not a substantive piece
    of evidence. [Para 36]

                             Case Law Cited
           Sharad Birdhichand Sarda v. State of Maharashtra,
           [1985] 1 SCR 88 : (1984) 4 SCC 116; H.D. Sundara
           and Others v. State of Karnataka, [2023] 14 SCR 47 :
           (2023) 9 SCC 581; Mustkeem alias Sirajudeen v. State
           of Rajasthan, [2011] 9 SCR 101 : (2011) 11 SCC 724;
           Haricharan Kurmi v. State of Bihar, [1964] 6 SCR 623 :
           AIR 1964 SC 1184 – relied on.

                               List of Acts
    Code of Criminal Procedure, 1973; Evidence Act, 1872; Penal
    Code, 1860.

                            List of Keywords
    Appeal against acquittal; Circumstantial evidence; Disclosure
    statement; Confession of co-­accused; Confession of an accused
    in custody; Recoveries doubtful; Recoveries not incriminating.

                           Case Arising From
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.250
    of 2016
    With
    Criminal Appeal Nos. 218-219 of 2016 and Criminal Appeal No. 1102
    of 2024
    From the Judgment and Order dated 11.12.2015 of the High Court of
    Gujarat at Ahmedabad in CRLA No. 1012 of 1993
[2024] 2 S.C.R.                                                      1181

            Thakore Umedsing Nathusing v. State of Gujarat


                        Appearances for Parties
     Rauf Rahim, Sr. Adv., Nachiketa Joshi, Mohd. Asad Khan, Ms.
     Sucheta Joshi, Himadri Haksar, Narayan Dev Parashar, Ali Asghar
     Rahim, Shekhar Kumar, Advs. for the Appellant.
     Ms. Archana Pathak Dave, Sr. Adv., Ms. Swati Ghildiyal, Ms. Devyani
     Bhatt, Advs. for the Respondent.
                 Judgment / Order of the Supreme Court

                               Judgment
     Mehta, J.
1.   These appeals take exception to the common judgment dated 11th
     December, 2015 passed by the High Court of Gujarat at Ahmedabad
     in Criminal Appeal Nos. 949 of 1994 and 1012 of 1993.
2.   The appellants being the original accused Nos. 1, 2, 3 and 5 namely
     Thakore Laxmansing Halsing (hereinafter being referred to as A1),
     Thakore Pravinsing Rajsing(hereinafter being referred to as A2),
     Thakore Umedsing Nathusing (hereinafter being referred to as
     A3), Thakore Khemsing Halsing(hereinafter being referred to as
     A5) alongwith original accused No.4, namely, Thakore Prabhatsing
     Kapursing(hereinafter being referred to as A4), were tried in Sessions
     Case Nos. 107 and 143 of 1990 respectively by the learned Additional
     Sessions Judge, District Banaskantha at Palanpur (hereinafter being
     referred to as ‘trial Court’). The accused appellants were convicted
     by the trial Court for the offence punishable under Section 392 of
     the Indian Penal Code, 1860 (for short ‘IPC’) and were sentenced
     to undergo 10 years’ rigorous imprisonment with fine of Rs. 5,000/-
     and in default, to undergo further three months simple imprisonment.
     The learned trial Court acquitted accused appellants of the charges
     under Sections 302 read with Section 34 and Sections 396 and 397
     IPC vide the judgment and final order dated 21st August, 1993. The
     original accused No.4 was acquitted of all the charges.
3.   Being aggrieved, the accused appellants preferred Criminal Appeal
     No. 1012 of 1993 against the judgment and order dated 21st August,
     1993 and craving acquittal whereas, the State preferred Criminal
     Appeal No. 949 of 1994 seeking to assail the acquittal of the accused
     appellants for the charged offences, i.e. Sections 302 read with
     Section 34 and Sections 396 and 397 of IPC.
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     Brief Case of Prosecution:-
4.   One Vithalbhai Kachrabhai Barot PW-1 lodged a complaint dated 1st
     March, 1990 [Exhibit-21] at Gadh Police Station, Taluka Palanpur,
     Gujarat alleging inter alia that his son Bharatbhai (deceased) who
     used to drive a Jeep bearing registration No.GJ-08-114 had been
     murdered and his dead body was found lying in the field of one
     Nizamkhan at village Dangiya on Dantiwada Road. Based on the
     said complaint, Criminal Case (FIR) No. 2914 of 1990 came to be
     registered at Gadh Police Station, Taluka Palanpur, Gujarat and the
     investigation was commenced.
5.   In the early hours of 2nd March, 1990, PSI J.N. Chaudhary (PW-22)
     of Sardarnagar Police Station saw a jeep being rapidly driven near
     Charannagar, Ahmedabad. The PSI tried to stop the jeep which was
     being driven away at a high speed and the same was stopped at
     some distance. Four persons alighted from the jeep and tried to run
     away. One of these persons was chased down and was apprehended
     and he divulged his name to be Laxmansing(A1).
6.   It is alleged that A1, upon interrogation by the police disclosed the
     names of four co-accused (A2, A3, A4 and A5) and stated that they
     were the ones who were travelling with him in the jeep.
7.   During interrogation, A1 also confessed to the murder of the owner
     of the jeep and also that the vehicle was looted in the course of the
     said transaction. He also stated that the persons who had escaped
     from the spot were also privy to the murder. Since the jeep bore
     blood stains, it was seized and A1 was taken into custody.
8.   The usual investigation was conducted; panchnama was prepared;
     the remaining four accused were apprehended. At the instance of
     A2, a blood stained knife was recovered which was alleged to be the
     weapon of offence. This recovery was alleged to be from a nala. A3
     and A4 were arrested. Blood stained clothes of A3 were recovered.
     A4 was arrested on 4th April, 1990 and a knife was produced on
     his information by one Shobhnaben wife of Kanji Chhara. The
     Investigating Officer concluded that the accused persons had taken
     the jeep taxi of Bharatbhai (deceased) on hire and thereafter they
     murdered the victim and looted the jeep.
[2024] 2 S.C.R.                                                     1183

            Thakore Umedsing Nathusing v. State of Gujarat


9.   Two separate charge-sheets came to be filed against the accused in
     the Court of Judicial Magistrate Ist Class (JMFC) concerned for the
     offences punishable under Sections 302 read with Section 34 and
     Sections 396 and 397 of the IPC. The offences being exclusively
     triable by the Court of Sessions, both sets of charge-sheeted accused
     were committed to the Sessions Court, Banaskantha, at Palanpur
     from where the cases were made over to the Court of Additional
     Sessions Judge, Banaskantha at Palanpur for trial. Charges were
     framed against A1, A2, A3 and A4 in Sessions Case No. 107 of 1990
     for the offences punishable under Section 302 read with Section 34
     of the IPC and Sections 396 and 397 of the IPC. Identical charges
     came to be framed against A5 in Sessions Case No. 143 of 1990.
     The accused pleaded not guilty and claimed to be tried. Though
     charges were framed separately, the trial of both sets of accused
     was conducted jointly.
10. Twenty five (25) witnesses were examined and twenty three(23)
    documents were exhibited by the prosecution in order to prove its
    case. Upon being questioned under Section 313 of Code of Criminal
    Procedure, 1973 (hereinafter being referred to as ‘CrPC’) and when
    confronted with the circumstances portrayed by the prosecution
    against the accused, they denied the same and claimed to be innocent.
11. After hearing the arguments advanced by the learned Public
    Prosecutor and the defence counsel and upon appreciating the
    evidence available on record, the learned trial Court, proceeded to
    acquit accused No. 4 in entirety. While recording acquittal of A1,
    A2, A3 and A5 from the charges for the offences punishable under
    Section 302 read with Section 34 and Sections 396 and 397 of the
    IPC, they were held guilty and convicted for the offence punishable
    under Section 392 of the IPC and were sentenced to undergo 10
    years’ rigorous imprisonment and a fine of Rs. 5,000/-, in default to
    further undergo 3 months simple imprisonment. Being aggrieved by
    their conviction, the accused A1, A2, A3 and A5 preferred Criminal
    Appeal No. 1012 of 1993 whereas the State preferred Criminal
    Appeal No. 949 of 1994 for assailing acquittal of A1, A2, A3 and A5
    before the Gujarat High Court.
12. The appeal preferred by the State being Criminal Appeal No. 949
    of 1994 was allowed by the Division Bench of the High Court of
    Gujarat vide judgment dated 11th December, 2015 whereas the appeal
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     preferred by the accused appellants was dismissed. The High Court
     reversed the acquittal of the accused and convicted them for the
     offences punishable under Sections 302 and 396 IPC and sentenced
     them to undergo life imprisonment and the fine and default sentence
     imposed by learned trial Court was maintained.
13. The aforesaid judgment dated 11th December, 2015 is assailed in
    these appeals preferred on behalf of the accused appellants.
     Submissions on behalf of accused appellants:-
14. Learned counsel for the accused appellants contended that the
    prosecution did not prove any document whatsoever to establish
    that the jeep bearing registration No.GJ-08-114 was owned by
    or was in possession of the deceased. The incriminating articles
    allegedly recovered at the instance of the accused were never
    got examined through the Forensic Sciences Laboratories (FSL).
    Only the blood samples of two accused were sent to the FSL for
    serological examination.
15. The prosecution miserably failed to prove the fact that A1 was found
    present in the Jeep bearing registration No.GJ-08-114, when the same
    was stopped by the PSI J.N. Chaudhary (PW-22) of the Kubernagar
    Police Station. In this regard, attention of the Court was drawn to
    the communication i.e. Exhibit-96 forwarded by PSI J.N. Chaudhary
    (PW-22) to the officer in-charge of the Sardarnagar Police Station
    wherein the registration number of the jeep is not mentioned. Learned
    counsel urged that this omission is fatal to the prosecution case.
16. It was thus urged that there is no reliable and tangible evidence
    establishing guilt of the accused beyond reasonable doubt so as
    to justify conviction of the accused-appellants as directed by the
    Division Bench of the Gujarat High Court while reversing the findings
    of acquittal recorded by the trial Court.
17. It was further contended that A2, A3 and A5 have been convicted
    solely on the basis of the confessional statement of A1 recorded by
    the Police Inspector PW-22. Learned counsel submitted that the said
    disclosure being in the form of a confession recorded by the Police
    Officer, is totally inadmissible in evidence as being hit by Sections 25
    and 26 of the Indian Evidence Act, 1872(hereinafter being referred
    to as ‘Evidence Act’).
[2024] 2 S.C.R.                                                         1185

             Thakore Umedsing Nathusing v. State of Gujarat


18. It was further submitted that the High Court, while reversing the
    acquittal of the accused as recorded by the trial Court, has not
    recorded any such finding that the view taken by the trial Court was
    perverse or two views i.e. one favouring the accused and the other
    favouring the prosecution were not possible from the evidence as
    available on record. It was contended that the findings recorded
    by the High Court in the impugned judgments are not based on
    any tangible evidence and are drawn sheerly on conjectures and
    surmises. They, therefore, submitted that the accused are entitled to
    an acquittal and the impugned judgment deserves to be set aside.
     Submissions on behalf of Respondent-State:-
19. Per contra, Ms. Archana Pathak Dave, learned senior counsel
    appearing for the respondent-State vehemently opposed the
    submissions advanced by the learned counsel representing the
    accused-appellants. She submitted that the High Court, after
    thorough and apropos appreciation of the substantial and convincing
    circumstantial evidence led by the prosecution has recorded
    unimpeachable findings holding the accused guilty of the offences.
    She thus implored the Court to dismiss the appeals and affirm the
    judgment of the High Court.
     Discussion:-
20. We have given our thoughtful consideration to the submissions
    advanced at bar and thoroughly perused the impugned judgment
    minutely and the evidence available on record.
21. Two fundamental issues are presented for adjudication in these
    appeals:-
     (i)    The scope of interference by High Court in an appeal challenging
            acquittal of the accused by the trial Court;
     (ii)   The standard of proof required to bring home charges in a case
            based purely on circumstantial evidence.
22. It is not in dispute that the prosecution did not lead any direct evidence
    so as to bring home the charges against the accused and the entire
    case of prosecution is based on circumstantial evidence.
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23. The principles required to bring home the charges in a case based
    purely on circumstantial evidence have been crystalized by this Court
    in the case of Sharad Birdhichand Sarda v. State of Maharashtra,
    (1984) 4 SCC 116. The following five golden rules were laid down
    in the above judgment: -
          “(1) the circumstances from which the conclusion of guilt
               is to be drawn must or should be and not merely
               “may be”, fully established.
          (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
          (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.”
24. The principles that govern the scope of interference by the High
    Court in exercise of appellate jurisdiction while dealing with an appeal
    against acquittal under Section 378(1)(b) CrPC were reiterated by
    this Court recently in the case of H.D. Sundara and Others v. State
    of Karnataka, (2023) 9 SCC 581 as follows:
          “(a) The acquittal of the accused further strengthens the
               presumption of innocence;
          (b)   The appellate Court, while hearing an appeal against
                acquittal, is entitled to re-appreciate the oral and
                documentary evidence;
          (c)   The appellate Court, while deciding an appeal
                against acquittal, after re-appreciating the evidence,
                is required to consider whether the view taken by
                the Trial Court is a possible view which could have
                been taken on the basis of the evidence on record;
[2024] 2 S.C.R.                                                            1187

            Thakore Umedsing Nathusing v. State of Gujarat


           (d)   If the view taken is a possible view, the appellate
                 Court cannot overturn the order of acquittal on the
                 ground that another view was also possible; and
           (e)   The appellate Court can interfere with the order of
                 acquittal only if it comes to a finding that the only
                 conclusion which can be recorded on the basis of the
                 evidence on record was that the guilt of the accused
                 was proved beyond a reasonable doubt and no other
                 conclusion was possible.”
25. Viewed in the light of these well settled legal principles, we now
    proceed to evaluate the impugned judgment whereby the conviction of
    the accused has been recorded reversing the acquittal by trial Court.
    Relevant findings from the impugned judgment dated 11th December
    2015 are reproduced hereinbelow for the sake of ready reference: -
           “[6.1]. At the outset it is required to be noted and it is not
           in dispute that the dead body of the deceased Bharatbhai
           was found on 01.03.1990 in the agricultural field of
           one Nizamkhan at village Dangiya on Dantiwada road
           within the jurisdiction of the Gadh Police Station, Taluka
           Palanpur. It is not in dispute that that original accused
           No. 1 Laxmansingh was apprehended by the PSI Shri.
           Chaudhary of Sardarnagar Police Station on 02.03.1990
           in the early morning. That on 02.03.1990, in early morning
           at Ahmedabad near Chharanagar, PSI of Sardarnagar
           Police station saw one jeep (muddamal jeep) coming in
           speed and he tried to stop the same. That four persons
           other than the original accused No. 1 were successful in
           running away from jeep, however the original accused
           No. 1 was arrested and interrogated. That the original
           accused No. 1 tried to explain his presence in the jeep in
           his further statement recorded under section 313 of the
           CrPC. According to original accused No. 1, as he wanted
           to go to Palanpur from Gitamandir Bus stand and one
           jeep was taking passengers to Palanpur, he was offered
           to sit in the same on payment of charges and therefore,
           he along with other passengers sat in the jeep and on
           the road near Sardarnagar Police tried to stop the jeep
           which was stopped at some distance and therefore, the
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        passengers and the driver ran away and when he alighted
        from the jeep, the police arrested him. However, by giving
        cogent reasons the learned trial Court has not accepted
        the defence of the original accused No. 1. It is required
        to be noted that to go to Palanpur from Gitamandir Bus
        stand, Chharanagar from where the original accused No.
        1 was apprehended from jeep, was not the route at all. To
        got to Palanpur from Gitamandir Bus stand, one was not
        required to go to Chharanagar/Sardarnagar at all. Under
        the circumstances, as such the original accused No. 1
        gave the false explanation/defence in his further statement
        recorded under section 313 of the CrPC. At this stage it is
        required to be noted that the design of the tyres of the jeep
        tallies with the tyre marks found at the place of incident
        from where the dead body of the deceased Bharatbhai
        was found. Even the design of the slippers of the original
        accused No. 1 tallies with the design of slipper found at
        the place of incident.
        [6.2] In the present case there is recovery of the knife
        used in committing the offence, at the instance of original
        accused No. 2 Pravinsingh which was recovered from the
        place which could have been known to the said accused
        alone i.e. from Nala near Palanpur-Siddhpur Highway
        road. The recovery of the knife at the instance of the
        original accused No. 2 has been established and proved
        by examining the panch witnesses.
        [6.3] In the present case even there is a recovery of the
        knife at the instance of the original accused Nos. 3 and 5
        and the knife used in committing the offence was recovered
        from the place which was known to the said accused
        alone. Even the trousers/pant of the original accused Nos.
        3 and 5 were recovered at their instance from the house
        of one Kanjibhai - friend of the said accused. The said
        pants were having blood stains. The original accused Nos.
        3 and 5 have failed to explain the blood stains on their
        trousers. The recovery of the trouser/pants and the knife
        at the instance of original accused Nos. 3 and 5 have
        been established and proved by examining Kanjibhai at
        Exh.77 and his wife Shobhnaben.
[2024] 2 S.C.R.                                                          1189

            Thakore Umedsing Nathusing v. State of Gujarat


           [6.4]. It is further submitted that therefore when there are
           recoveries of the weapons used in committing the offence
           and even recovery of trousers/pants of original accused
           Nos. 3 and 5 having blood stains, at the instance of the
           original accused Nos. 2, 3 and 5 and when original accused
           No. 1 was as such found/apprehended/arrested with the
           muddamal jeep and his defence/explanation is found to
           be false and when the prosecution has been successful in
           establishing and/or proving the complete chain of events
           with respect to the involvement of the jeep which was
           driven by the original accused No. 1, it cannot be said
           that the trial Court has committed any error in convicting
           the accused Nos. 1, 2, 3 and 5 for the offence punishable
           under section 392 of the IPC. It is required to be noted
           that even the blood stains were found on the hood of the
           jeep and even on the knife.
           [6.5]. Now, that takes us to the appeal preferred by the
           State against the impugned judgment and order of acquittal
           passed by the learned trial Court acquitting the original
           accused for the offences punishable under sections 302
           and 396 of the IPC.
           So far as the impugned judgment and order of acquittal
           passed by the learned trial Court acquitting the accused
           for the offence punishable under section 396 of the IPC is
           concerned, it appears that by the impugned judgment and
           order, the learned trial Court has acquitted the accused
           for the offence punishable under section 306 of the IPC
           on the ground that as original accused No. 4 has been
           acquitted and the number of remaining convicted accused
           would be only four, the learned trial Court has acquitted
           the remaining accused for the offence punishable under
           section 396 of the IPC. However, it is required to be noted
           that from the very beginning there were allegations of
           involvement of five persons in committing the offence.
           It is true that out of five accused, original accused No.
           4 has been acquitted for want of sufficient evidence.
           However, on that ground alone the remaining accused
           could not have been acquitted for the offence punishable
           under section 396 of the IPC. As observed by the Hon’ble
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        Supreme Court in the case of Manoj Giri (Supra), in a
        given case it may happen that there can be five or more
        persons and the factum of five or more persons either
        is not disputed or is clearly established, but the Court
        may not be able to record a finding as to identity of all
        the persons said to have committed dacoity and may
        not be able to convict them and order their acquittal,
        observing that thereafter identity is not established, or
        that otherwise there is insufficient evidence to convict
        them, in such case there can be a conviction of less
        than five persons or even one for dacoity. Similar is the
        view taken by the Hon’ble Supreme Court in the case
        of Saktu (Supra). Under the circumstances and in the
        facts and circumstances of the case, learned trial Court
        has materially erred in acquitting the remaining original
        accused Nos. 1, 2, 3 and 5 for the offences punishable
        under section 396 of the IPC.
        [6.6] Similarly, the learned trial Court has committed grave
        error in acquitting the original accused for the offence
        punishable under section 302 of the IPC. From the findings
        recorded by the learned trial Court as such the learned
        trial Court has specifically observed and given a finding
        that original accused Nos. 1, 2, 3 and 5 have committed
        the murder/loot and dacoity and there is ample material /
        evidence against them connecting them with respect to the
        murder of the deceased Bharatbhai. Therefore, as such
        the learned trial Court has already convicted the accused
        for the offence punishable under section 392 of the IPC.
        As observed hereinabove, original accused Nos. 1, 2, 3
        and 5 are also held to be guilty for the offence punishable
        under section 396 of the IPC. Once the accused are
        convicted for the offence punishable under section 396
        of the IPC i.e. dacoity with murder and the death of the
        deceased Bharatbhai was homicidal death, the learned trial
        Court ought to have convicted the accused for the offence
        punishable under section 302 of the IPC also. As observed
        hereinabove, the prosecution has been successful in
        proving and establishing the complete chain of events by
        leading cogent evidence and therefore, accused persons
[2024] 2 S.C.R.                                                           1191

            Thakore Umedsing Nathusing v. State of Gujarat


           were liable to be convicted for the offence punishable
           under section 302 of the IPC.
           [6.7]. Now, so far as the reliance placed upon the decisions
           of the Hon’ble Supreme Court in the cases of Rakesh
           (Supra); Vijay Kumar (Supra) and Kanhaiyalal (Supra)
           relied upon by the learned advocate appearing on behalf
           of the original accused is concerned, it is required to be
           noted that on facts and the findings recorded by this Court,
           none of the aforesaid decisions shall be applicable and/
           or of any assistance to the accused.
           [6.8]. Now, so far as the reliance placed upon the decision
           of the Hon’ble Supreme Court in the case of Rakesh
           (Supra) by the learned advocate appearing on behalf of the
           accused is concerned, it is required to be noted that in the
           present case there is recovery of knife/s at the instance of
           original accused No. 2 and original accused Nos. 3 and 5
           and that there is discovery of clothes of original accused
           Nos. 3 and 4 with blood stains which are not explained
           by the original accused Nos. 2, 3 and 5. Similarly, in the
           case before the Hon’ble Supreme Court in the case of
           Kanhaiyalal (Supra), except last seen together, there was
           no other evidence connecting the accused. Under the
           circumstances, none of the aforesaid decisions shall be
           applicable to the facts of the case on hand and/or shall
           be of any assistance to the accused.
           [7.0]. In view of the above and for the reasons stated above,
           Criminal Appeal No. 1012/1993 preferred by the original
           accused against their conviction for the offence punishable
           under section 392 of the IPC is hereby dismissed.”
26. On going through the record, we find that the prosecution relied upon
    the circumstantial evidence comprising of disclosures, recoveries and
    discoveries for bringing home the guilt of the accused.
27. The most important recovery is alleged to be of the jeep bearing
    registration No.GJ-08-114.
28. We may note that the said recovery is attributed to A1, who was
    allegedly apprehended by PSI J.N. Chaudhary (PW-22) on 02nd
    March, 1990. He forwarded a report/communication (Exhibit-96)
1192                                                      [2024] 2 S.C.R.

                     Digital Supreme Court Reports


     dated 2nd March, 1990 to the officer in-charge of the Sardarnagar
     Police Station wherein, the confession made by the A1 implicating
     himself and the other accused is recorded.
29. It is trite that confession of an accused in custody recorded by a
    police officer is inadmissible in evidence as the same would be hit
    by Section 25 of the Evidence Act. Thus, that part of the statement
    of A1 as recorded in the report/communication (Exhibit-96), wherein
    he allegedly confessed to the crime of murder of the jeep driver and
    looting the jeep and named the other accused persons as particeps
    criminis is totally inadmissible and cannot be read in evidence except
    to the extent provided under Section 27 of the Evidence Act.
30. After A1 had been apprehended, PSI J.N. Chaudhary (PW-22)
    prepared two panchnamas i.e. Exhibit-88 and Exhibit-89. The
    panchnama (Exhibit-89) was prepared at 08:30 hours on 2nd March,
    1990 wherein, there is no mention that A1 had disclosed the names
    of the other accused. This omission is very striking and goes to the
    root of the matter. It creates a grave doubt on the truthfulness of the
    evidence of PSI J.N. Choudhary (PW-22). As a consequence, the
    so called disclosure statement made by A1(Exhibit-96) on which the
    prosecution banked upon and the High Court relied upon by treating
    it to be an incriminating circumstance against the accused persons
    is totally inadmissible and unworthy of reliance.
31. One of the panch witnesses Pratap Tolaram Makhija was examined as
    PW-21 and in his deposition, he did not utter a single word regarding
    the accused having made any confessional/disclosure statement to
    PSI J.N. Choudhary(PW-22) when the memos (Exhibits-88 and 89)
    were prepared.
32. When PSI J.N. Chaudhary (PW-22) was examined, the prosecution
    did not even make an attempt to prove the confessional part of the
    communication (Exhibit-96) and rightly so in our opinion.
33. Even if it is assumed for the sake of arguments that A1 was present
    in the jeep owned by Bharatbhai (deceased), this fact in isolation
    cannot lead to an inference about culpability of the said accused
    for the offences of murder and dacoity. As per the admitted case
    of the prosecution, more than one person was present in the jeep,
    when the same was flagged down by PSI J.N. Chaudhary (PW-22).
    Thus, the possibility of the A1 (Laxmansing) travelling in the jeep as
[2024] 2 S.C.R.                                                        1193

            Thakore Umedsing Nathusing v. State of Gujarat


     an innocent passenger cannot be ruled out. No other circumstance
     except for presence in the jeep was portrayed in the prosecution
     case so as to bring home the guilt of A1.
34. The prosecution pinned the identity of A2, A3, and A5 as the
    assailants on the basis of the disclosure statement (Exhibit-96) of
    A1. They were primarily convicted on the basis of the recoveries
    of knives and clothes. On going through the entire record, we find
    that these so called incriminating articles allegedly recovered at the
    instance of the accused were never sent to the Serology expert for
    comparison of the blood groups existing thereupon with the blood
    group of the deceased.
35. We have gone through the evidence of the concerned police officials
    associated with the recoveries and find their testimonies to be highly
    doubtful. The knife which was recovered at the instance of A3 was
    found from a nala which is a place open and accessible to all. The
    knife attributed to A4 was presented by one Shobhnaben wife of Kanji
    Chhara and thus it cannot be linked to A4. Thus, these recoveries in
    no manner can be treated to be incriminating in nature. In the case
    of Mustkeem alias Sirajudeen v. State of Rajasthan, reported in
    (2011) 11 SCC 724, this Court held that the solitary circumstance
    of recovery of blood-stained weapons cannot constitute such
    evidence which can be considered sufficient to convict an accused
    for the charge of murder. We thus find the recoveries to be highly
    doubtful and tainted. Even if it is assumed for a moment that such
    recoveries were effected, the same did not lead to any conclusive
    circumstance in form of Serological report establishing the presence
    of the same blood group as that of the deceased and hence they do
    not further the cause of prosecution. In addition thereto, we find that
    the prosecution failed to lead the link evidence mandatorily required
    to establish the factum of safe keeping of the muddamal articles and
    hence, the recoveries became irrelevant.
36. At the cost of repetition, it may be noted that the veracity of disclosure
    statement of A1 as recorded by PW-22 has already been doubted
    by us. In addition thereto, it is manifest that the disclosure statement
    of A1 cannot be read in evidence against the other accused i.e.
    A2, A3 and A5. The evidentiary value of the confession of one co-
    accused against the other was considered by this Court in the case
    of Haricharan Kurmi v. State of Bihar reported in AIR 1964 SC
1194                                                       [2024] 2 S.C.R.

                     Digital Supreme Court Reports


     1184 and it was held that such statement is not a substantive piece
     of evidence. The said case dealt with a judicial confession made by
     an accused and it was held that even such confession cannot be
     treated as a substantive evidence against other co-accused persons.
     In the case at hand, the situation is even worse because the High
     Court has relied upon the interrogation note of A1 (Exhibit-96) so as
     to hold A2, A3 and A5 guilty of the offence. The interrogation note
     of A1 being hit by Section 25 of the Evidence Act cannot be read in
     evidence for any purpose whatsoever.
37. From a thorough appreciation of the evidence available on record,
    we find that the prosecution miserably failed to lead reliable, tangible
    and convincing links forming a complete chain of incriminating
    circumstances so as to bring home the guilt of the accused for the
    charge of murder punishable under Section 302 IPC.
38. We may note from the quoted portions of the impugned judgment
    that while reversing the acquittal of the accused recorded by the trial
    Court for the charges under Sections 302 read with Section 34 and
    Sections 396 and 397 IPC, the High Court did not record any such
    finding that the view taken by the trial Court, based on appreciation
    of evidence was either perverse or it was not one of the permissible
    views favouring the acquittal of the accused. In this background,
    the impugned judgment rendered by the High Court falls short of
    the satisfaction mandatorily required to be recorded for reversing a
    judgment of acquittal and converting it to one of conviction.
39. We are rather compelled to hold that the judgment of the High Court
    is based sheerly on conjectures and surmises rather than being
    based on any substantive or reliable circumstantial evidence pointing
    exclusively to the guilt of the accused. Insofar as the conviction of
    the accused as recorded by the trial Court for the offence under
    Section 392 is concerned, the same is also based on the same set
    of inadmissible and unreliable links of circumstantial evidence which
    we have discarded in the preceding discussion.
     Conclusion: -
40. As a consequence of the above discussion, the impugned judgment
    dated 11th December, 2015 passed by the High Court of Gujarat
    at Ahmedabad in Criminal Appeal No. 1012 of 1993 and Criminal
    Appeal No. 949 of 1994 does not stand to scrutiny and is hereby
[2024] 2 S.C.R.                                                      1195

            Thakore Umedsing Nathusing v. State of Gujarat


     quashed and set aside. Further, the judgment dated 21st August, 1993
     passed by the trial Court convicting and sentencing the accused for
     the offences punishable under Section 392 IPC is also unsustainable
     on the face of the record. Both the judgments are thus, quashed
     and set aside.
41. Resultantly, the appeals are allowed. The appellants are acquitted
    of the charges and are directed to be set at liberty forthwith, if not
    required in any other case.
42. Pending application(s), if any, stand disposed of.


     Headnotes prepared by: Divya Pandey                Result of the case:
                                                          Appeals allowed.