NEUTRAL CITATION
R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2067 of 2023
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2023
In R/CRIMINAL APPEAL NO. 2067 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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JAGDISHBHAI BABALBHAI ANDHRE
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR PV PATADIYA(5924) for the Appellant(s) No. 1
MR KANVA ANTANI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 21/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. This appeal under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) has been filed assailing the judgment and order dated 31st March, 2011 passed by Page 1 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Valsad, in Sessions Case No.60 of 2009 whereby, the present appellant - original accused No.1 along with the original accused No.2 are convicted and sentenced to undergo imprisonment for life and fine of Rs.3,000/-, in default of payment of fine, to undergo further rigorous imprisonment for one year for the offence punishable under sections 302 and 114 of Indian Penal Code, 1860 (hereinafter referred to as "the IPC" for short). The accused were given set off for the period undergone in jail.
2. Short facts of the prosecution case are that a complaint was filed by complainant-Dineshbhai Keshavbhai inter alia stating that deceased- Mukeshbhai Keshavbhai Machhi is his brother, original accused No.2- Rohiniben is wife of deceased-Mukeshbhai and accused No.1-Jagdish Bababhai (the appellant herein) was residing with the deceased. It was further stated that the deceased and the accused no.2 have a daughter aged 9 years and a son aged 7 years. It was inter alia alleged in the complaint that the accused no.2 had illicit relation with the accused no.1. On the date of incident, the accused no.2 called the complainant in the early morning as the deceased was not getting up and hence, the complainant and one Hemantbhai came at the house of the accused no.2 and found that the deceased was not getting up and had already died. Upon inquiry about accused No.1 as he was not found at home, the complainant and others went for searching him and found him sleeping at the seashore. When enquired him about the incident, he had made an extra-judicial confession that he had killed the deceased with the help of the accused no.2. In pursuance of the aforesaid complaint, the police started investigation and at the end of investigation, filed charge sheet Page 2 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined against the accused in the Court of learned Judicial Magistrate First Class, Umargam.
2.1 As the offence was triable exclusively by the Court of Sessions, learned Magistrate committed the case under section 209 of the Code for trial to the Court of Sessions at Valsad, where the case was numbered as Sessions Case No.60 of 2009. Thereafter, charge was framed against the accused at exh.4 by the learned Sessions Judge. The said charge was read over and explained to the accused. The accused denied the charge and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused.
2.2 To prove the guilt against the accused, prosecution examined following eight witnesses :
P.W. Name of witness Exhibit No.
No.
1 Dineshbhai Keshavbhai 9
2 Apurva Govindbhai Machhi 16
3 Jitendra Keshavbhai Machhi 19
4 Dhaval Jitendra Machhi 20
5 Mayur Vasubhai Machhi 21
6 Dr. Murlidhar Anjaniray Roy 22
7 Vijaykumar Dangal Patil 27
8 Bansilal Ramdas 35
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NEUTRAL CITATION
R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023
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The prosecution also relied on following documentary evidence:
Sr. Description Exhibit No.
No.
1 Complaint 10
2 Panchnama of clothes on the dead body 12
3 Panchnama of body position of the accused 13
4 Panchnama of scene of offence 18
5 Post mortem note of the deceased 23
6 Cause of death certificate of the deceased 24
7 Police yadi 25
8 Police report sent along with dead body for 26
the cause of death
9 Letter sent to F.S.L., Surat 28
10 Forwarding note 29
11 Receipt issued by F.S.L., Surat, for having 30
received the muddamal
12 Letter sent by F.S.L. authorities to Umargam 31
Police Station
13 F.S.L. report 32
14 Opinion of serological investigation 33
15 Report relating to visit by F.S.L. authorities at 34
the scene of offence
16 Xerox copy of station diary of Umargam 36
Police Station.
3. At the outset, learned advocate Mr.Patadiya has very fairly pointed out that the appeal of the co-accused-Rohiniben @ Munni Mukeshbhai Machhi is already dismissed by the Coordinate Bench of this Court vide judgment and order dated 10.06.2016 passed in Criminal Appeal No.562 Page 4 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined of 2011 and against the aforesaid judgment and order dated 10.06.2016, Special Leave Petition (Criminal) Diary No.20585/2018 was filed, which is also dismissed by the Supreme Court vide order dated 08.10.2018. However, learned advocate Mr.Patadiya has submitted that the case of the present appellant, who is also arraigned as an accused no.1, stands on different footing since the evidence does not point out its complicity in the offence.
4. Learned advocate Mr.Patadiya has submitted that the appellant could not file the appeal within reasonable time and the same has been filed in the year 2023 after the delay of approximate 3700 days, which has been condoned by this Court. He has further submitted that the Coordinate Bench, in the judgment dated 10.06.2016 passed in the case of the co-accused making observations with regard to role of the present appellant, may not be considered adversely in deciding the present appeal. It is further submitted that the entire case of the prosecution is premised on the extra-judicial confession with respect to the deceased and the same cannot be solely premised for convicting the present accused as the extra-judicial confession of both the accused is not believed by the trial court.
5. Learned advocate Mr.Patadiya, has, thus, submitted that the conviction cannot be recorded only on the basis of the last seen theory unless it is corroborated by the other evidence. It is submitted by him that on the day of incidence, which had occurred at 1 O'clock in the night on 02.08.2009 and the trial court, while resorting to the provisions of Section 106 of the Indian Evidence Act, has convicted the accused without appreciating the evidence in its true perspective.
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6. Learned advocate Mr.Patadiya has submitted that the case of the prosecution is premised on circumstantial evidence. While inviting the attention of this Court to the evidence, which has surfaced during the trial proceedings, it is submitted that no blood or injury has been found on the body of the appellant-accused and the Investigating Officer has not recovered the pillow or piece of cloth, which are used for the commission of offence. He has submitted that so far as the recovery of Sari is concerned, which is sent to the FSL, no blood has been found in the serological report and the blood group is found to be unidentified. It is further submitted that the children, who were present in the house, would have been the best witnesses to the incident, however, neither they are examined as witnesses nor their statements have been recorded. So far as the theory of last seen together is concerned, learned advocate Mr.Patadiya has placed reliance on the judgment of the Supreme Court in the case of Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715. Thus, it is submitted that the judgment of the Coordinate Bench confirming the conviction and sentence of the co-accused i.e. the accused no.2 may not be placed reliance and the conviction recorded by the trial court in the case of the present appellant may be set aside.
7. Per contra, learned APP Mr.Antani has submitted that the present appellant was arraigned as an accused no.1, who along with the accused no.2 has committed the offence of murdering the deceased. He has submitted that the conviction, which was recorded in convicting the accused no.2-Rohiniben @ Munni Mukeshbhai Machhi by the trial court, is confirmed by this Court vide judgment and order dated 10.06.2016 passed in Criminal Appeal No.562 of 2011, against which the SLP is Page 6 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined filed, which was also dismissed and hence, the present appeal is also required to be dismissed and the conviction and sentence recorded by the trial court may not be disturbed.
8. Learned APP Mr.Antani has submitted that the role of the present appellant, who is accused no.1, is already discussed by the Coordinate Bench and it is proved that the present appellant was having illicit relationship with the accused no.2 and hence, the accused no.2, who is the wife of the deceased, has equally participated in committing the crime with the present appellant. Thus, it is submitted that in light of the judgment and order dated 10.06.2016 passed in Criminal Appeal No.562 of 2011, the present appeal does not require any consideration and the same may be rejected.
9. We have heard the learned advocates appearing for the respective parties.
10. The Coordinate Bench of this Court, while examining the role of the appellant (accused no.2-Rohiniben @ Munni Mukeshbhai Machhi) in her appeal being Criminal Appeal No.562 of 2011 vide judgment and order dated 10.06.2016 has also discussed the role of the present appellant, who is arraigned as an accused no.1.
11. We may with profit incorporate the following observations made by the Coordinate Bench vide judgment and order dated 10.06.2016 passed in Criminal Appeal No.562 of 2011:-
9. Complainant Dineshbhai Keshavbhai has been examined as the Prosecution Witness No.1 at Exh.9.
He deposed that deceased Mukesh is his brother and Page 7 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined accused No.2 - Rohini is his sister-in-law. He further deposed that accused No.1 Jagdish was working in the ship of Rohinis father and living at the place of Rohini while he was residing adjoining to their house. He further deposed that when he was sleeping at night, Rohini woke him up at 4.00 a.m. and stated that Mukesh was not responding. He further deposed that thereafter,he, his brother - Jitendra and Hemant son of his uncle went to the house of Mukesh and from there, he along with others went to inquire about Jagdish. Though it was not very clear as to who found Jagadish, it has come on record that Jagdish was sleeping at the seashore. At that time, on inquiry, Jagdish told that he and Mukeshbhai after drinking liquor at 9.00 p.m. went to sleep at the seashore at 10.00 p.m. At about 1.00 a.m., he woke up on hearing the fight between Mukesh and his wife Rohini and at that time, Mukesh was beating Rohini. Rohini then tied both the legs of Mukesh with her sari and asked him to close his mouth and therefore, he gagged his mouth with a pillow and he and Rohini strangled his neck killing Mukesh. The complainant admitted in his cross- examination that there used to be quarrel between Mukesh and Rohini. He also admitted that when Jagdish came to the house of Mukesh, he heard Jagdish telling to neighbouring persons of he and Rohini having killed Mukesh by smothering. The trial court has not believed the theory of extra judicial confession or any confession referred above and therefore, in our view, the learned advocate, Mr.Barot, has unnecessarily stretched the said submissions in detail. After discussing the entire evidence on record, the trial court has concluded that it was not proved beyond doubt that both the accused i.e. Jagdish and Rohini have made any extra judicial confession in respect of death of Mukesh and we find ourselves in agreement with the same.
10. Another important witness is the Prosecution Witness No.4 - Dhaval Jitendra Machhi, who went to find out Jagdish. He deposed at Exh.20 that at the time of incident, he was at his house and Rohini, wife of his brother Mukesh, came to his house and stated that Mukesh was not speaking and thus, Rohini called them. Moreover, it appears from his deposition that Jagdish used to go on with the boat by staying at the house of Mukesh. Though his detailed cross examination was made, nothing was asked as to whether Jagdish was living at the house Page 8 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined of Mukesh or at any other place. In the chief examination, this witness deposed that Jagdish belonged to Bordi Village but living at the house of Rohini. He also deposed that Jagdish was present at the house of Rohini till 11.30 p.m. at night. Thus, from the deposition of this witness, it is to be carved out that Jagdish was also living with Mukesh- the deceased and Rohini, wife of Mukesh and Jagdish and Rohini were present there at the time of incident during night.
11. Another witness, who went to find out Jagdish, is the Prosecution Witness No.5 - Mayur V. Machhi. It was deposed by this witness in his chief examination at Exh.21 that they formed two groups to trace out Jagdish and Jagdish was found out by the other group. He was residing beside the house of Mukesh and knew Rohini, the appellant herein. He further stated that persons of neighbourhood stated that Jagdishbhai was at the house of Rohini during night and thus, there was a doubt on Jagdish and they went to find out Jagdish.
12. Another witness is the Prosecution Witness No.3 Jitendra Keshav Machhi, who is the brother of both the complainant and Mukesh. It was deposed by him that at the time of incident, he was at his house and Rohini came to his house and stated that his brother Mukesh was not responding. It was further deposed that Jagdish used to go on with the boat by staying at the house of Mukesh. Although detailed cross examination was carried out, nothing has been asked to this witness that Jagdish was living at any place other than the house of Rohini and Mukesh. From the deposition of this witness, it has been proved beyond doubt that Mukesh, Rohini and Jagdish- the accused were living together and Rohini was present on the day of incident at the house of Mukesh i.e. at her own house.
13. Thus, it appears from the evidence of the complainant that Mukesh and Rohini were happily living, however, there used to be occasional quarrels between them. It is clear from his cross- examination that on the day of incident at about 8.30 p.m., Jagdish was seen at the house of Mukesh and both were consuming liquor together. It is thus clear that Jagdish was sleeping at the house of the Page 9 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined deceased. Therefore, the aspect that the deceased was last found together with Jagdish and Rohini during night cannot be doubted.
14.Aforesaid version of the complainant is substantiated by the testimonies of the Prosecution Witness No.3 - Jitendra Machhi, the Prosecution Witness No.4 Dhaval Jitendra Machhi and the Prosecution Witness No.5 - Mayur V. Machhi. Though there cannot be any dispute about the presence of accused No.2 Rohini at the place of incident, it is true that no specific question has been put to any of these witnesses by the learned trial Judge about the presence of the appellant - accused No.2 Rohini at the place of incident. Moreover, no witness has deposed that appellant-original accused no.2-Rohini was there in the house and no investigation was carried out by the investigating agency in that line coupled with the aspect that no statements of children of the deceased were recorded, however, the fact remains that the case which has been put up by Rohini, the appellant herein, in her further statement is altogether a new theory developed later on, which is nothing but an after thought. It is pertinent to note that regarding said new theory, nothing has been asked to the witnesses in their cross examinations, though detailed cross examinations of those witnesses were carried out. Under the circumstances, so far as the theory of last seen together is concerned, the above discussed reliable and trustworthy evidence of the prosecution witnesses cannot be discarded.
15. Apart from that, the defense, which has been taken by the accused No.2 in the last portion of her further statement recorded under section 313 of the Code, that she was not at the house when the incident had occurred but had gone for fishing, is improbable and unbelievable in view of the fact that no husband would allow his wife to go for fishing alone during night time at the seashore. Moreover, it has been the consistent versions of the complainant and other witnesses namely, Jitendra, Dhaval and Mayur that it was the appellant accused No.2, who had come to their house informing that deceased Mukesh was not responding. Thus, it is clearly established by the prosecution through the evidence of aforesaid witnesses that at the time when the incident had occurred, accused No.2 Rohini Page 10 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined was very well present at her own house where she was living with her husband-deceased-Mukesh and her presence at her own house was also the natural one. Thus, the defense putforward by the appellant accused No.2 that she was not present at the house when the incident had occurred cannot be acknowledged at all. Thus, the main link in the chain of circumstances of last seen together has been completed and proved by the prosecution beyond reasonable doubt. It is to be noted that the learned advocate for the appellant-original accused No.2, did not submit anything on the point of last seen together and though his specific attention on paragraph No.25 of the impugned judgment has been drawn by the court, nothing substantial has been submitted by him more particularly when not a single question had been asked in the cross examinations of any of the witnesses referred above relating to the new theory put up by the appellant-original accused No.2 in her further statement as referred above.
16. So far as the case of the defense that there are material contradictions in the evidence of the witnesses and the medical evidence and hence, the appellant may be given benefit of doubt is concerned, it is the fact that there appears contradictions, however, if overall aspects of the matter are taken into consideration viz.evidence of the witnesses and other corroborative oral as well as the documentary evidence, more particularly, of doctor categorically opining that cause of death was due to asphyxia and strangulation and could have been caused if mouth of a person is pressed with pillow, we are of the opinion that the case of the prosecution cannot be discarded on such a ground, which otherwise has been convincingly and satisfactorily proved by the prosecution, by leading the trustworthy evidence.
17. Reference may be made to a decision of the Honble Apex Court in the case of Madhu alias Madhuranatha and Anr. vs. State of Karnataka, AIR 2014 Supreme Court 394, wherein, it has been held by the Honble Apex Court in paragraph nos. 6 to 9 as under:
6.This Court has dealt with the case of circumstantial evidence time and again. It has consistently been held that a conviction can be based solely on circumstantial evidence. The Page 11 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 or point to any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. The evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable.
(Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Uttar Pradesh v. Satish, AIR 2005 SC 1000 : (2005 AIR SCW 905); and Paramjeet Singh alias Pamma v. State of Uttarakhand, AIR 2011 SC 200 : (2010 AIR SCW 6616)).
7. Both the courts below have dismissed the aforesaid circumstances in light of the aforesaid legal propositions and reached to a conclusion that the appellants had committed the crime. We do not see any reason to interfere with such concurrent finding of fact.
8. It has been canvassed on behalf of the appellants that there are discrepancies and contradictions in the depositions of witnesses like the timings when deceased was seen last with the appellants and the distances of places etc. do not tally. Thus, their evidence cannot be relied upon.
9.In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181 : (AIR 2013 SC (Cri) 1544 : 2013 AIR SCW 3208), this Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant Page 12 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. A similar view has been reiterated in State of U. P. v. M. K. Anthony, AIR 1985 SC 48; State, Rep. by Inspector of Police v. Saravanan and Anr., AIR 2009 SC 152 : (2008 AIR SCW 7060); and Vijay alias Chinee v. State of M.P. (2010) 8 SCC 191 : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510).
It has been held in the afore referred case that the facts so established should be consistent only with the hypothesis of the guilt of the accused and the evidence should be of the nature of sustainable conviction. It has further been held therein that the court is not supposed to give undue importance to contradictions, omissions and discrepancies, which shake the basic version of the prosecution witnesses. In the case before us, the facts established through the oral as well as the documentary evidence would lead only to the hypothesis of the guilt of the appellant and the evidence produced by the prosecution is making the conviction of the appellant sustainable. Further, there are minor contradictions in the versions given by the witnesses regarding the place from where the accused no.1 was found. However, said contradictions would not go to the root of the matter and shake the basic versions given by the witnesses and therefore, in view of the well settled principle laid down in the above mentioned case, this court is not giving undue weightage to those minor contradictions.
18. From the entirety of the facts and circumstances narrated hereinabove, we are of the opinion that the Page 13 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023 NEUTRAL CITATION R/CR.A/2067/2023 JUDGMENT DATED: 21/09/2023 undefined main link in the chain of circumstances of last seen together of the accused No.2 with the deceased has been completed and established by the prosecution beyond doubt. It appears that the learned trial judge considered all the aspects of the matter minutely and came to the irresistible conclusion that the prosecution has proved the case against the appellant original accused no.2 beyond reasonable doubt and accordingly, passed the impugned judgment and order and therefore,conviction recorded and sentence imposed on the appellant - original accused No.2 by the learned trial judge was just, proper and reasonable. Since no illegality or infirmity as having committed by the learned trial judge is noticed in the said findings, we do not find it necessary to interfere with the same.
12. Almost similar contentions, which are raised in the present appeal, were raised by the co-accused i.e. the accused no.2 before the Coordinate Bench in Criminal Appeal No.562 of 2011. As recorded hereinabove, the Coordinate Bench, after considering the evidence and the analysis of the judgment of the trial court, has upheld the conviction of the accused no.2. The evidence of the complainant-Dineshbhai Keshavbhai, who has examined as the Prosecution Witness No.1 at Exh.9 and as discussed by the Coordinate Bench, would clearly indicate the role of the present appellant. The evidence reveals that there was a fight between the deceased and the accused no.2-Rohiniben @ Munni Mukeshbhai Machhi, who is the wife of the deceased, at around 1:00 a.m. (at the night) and the accused no.2 tied both the legs of the deceased with her sari and asked the present appellant to close his mouth and the accused no.1 (present appellant) gagged his mouth with a pillow and the accused no.2 strangled the neck of the deceased. In the cross-examination, it is elicited that there was a quarrel between the deceased and the accused no.2-Rohiniben @ Munni Mukeshbhai Machhi, who is the wife of the deceased.
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13. The Coordinate Bench has also considered the evidence of PW-4- Dhaval Jitendra Machhi. From his evidence, it is elicited that there was illicit relationship between the present appellant and the wife of the deceased and the evidence of PW-3 and PW-5 i.e. Jitendra Keshav Machhi and Mayur V. Machhi, respectively also reveal that on the day of incident, both the accused were seen with the deceased and were present at the house of the deceased.
14. The evidence also firmly establishes the presence of the appellant with the accused no.2 at the house of the deceased. We have also referred to the statement recorded under Section 313 of the Code of the present accused. When he was confronted with the evidence, he has not tendered any explanation in his statement.
15. Under the circumstances and in light of the appreciation of the evidence by us and considering the observations made by the Coordinate Bench in the judgment and order dated 10.06.2016 passed in Criminal Appeal No.562 of 2011, against which Special Leave Petition (Criminal) Diary No.20585/2018 was filed, which is already dismissed, we have not inclined to take different view, which is taken by the Coordinate Bench. Hence, the present appeal fails and the same is rejected. R & P be sent back to the concerned trial court.
16. As a sequel, Criminal Misc. Application does not survive and the same is disposed of accordingly.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(M. R. MENGDEY,J) ABHISHEK/84 Page 15 of 15 Downloaded on : Mon Sep 25 20:36:57 IST 2023