Gujarat High Court
Atul @ Dina @ Karu Hemta Rupsing Chauhan vs State Of Gujarat on 4 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 769 of
2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
Approved for Reporting Yes No
- No
=======================================
ATUL @ DINA @ KARU HEMTA RUPSING CHAUHAN & ANR.
Versus
STATE OF GUJARAT
=======================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 2
MR PV PATADIYA(5924) for the Appellant(s) No. 1,2
MR JAY MEHTA ADDL PUBLIC PROSECUTOR for the Respondent
=======================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The accused have preferred this appeal under Section 374 Page 1 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined of the Criminal Procedure Code, 1973 against the judgment and order of conviction dated 10.06.2014 passed by the learned Principal District and Sessions Judge, Porbandar (hereinafter be referred to as "the trial Court") in Sessions Case No.04 of 2013, whereby, the present appellants have been convicted for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and directed them to undergo sentence of rigorous imprisonment of life for the said offence with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for one month and also convicted for the offence punishable under Section 397 read with Section 114 of the Indian Penal Code and directed them to undergo sentence of rigorous imprisonment of ten years for the said offence with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for one month. The learned Sessions Judge has also ordered that all the sentences shall run concurrently.
2. Brief facts of the prosecution case is that on 04/05.10.2012 at about 2.00 AM, when Jamnaben W/o. Ogha Natha Bhuva was sleeping in the house, the accused came for the purpose of theft / robbery of gold ornaments worn by Jamnaben and they had given axe blow on the head of Jamnaben, due to which, she died on the spot. Thereafter, the police visited the place of the incident and on the basis of the complaint filed by the complainant, the First Information Report (FIR) being C.R.No.I- 56/2012 came to be registered with Ranavav Police Station for the offence punishable under Sections 302, 397, 114 of the Page 2 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined Indian Penal Code and for the offence punishable under section 135 of the Gujarat Police Act.
2.1 After completion of investigation, as the sufficient evidence was found, the police has arrested the accused and has filed the charge-sheet against the accused before the Judicial Magistrate (First Class), Ranavav wherein it was registered as Criminal Case No.29 of 2013. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class) has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions where it has been registered as Sessions Case No.04 of 2013.
2.2 On the basis of the material available on record, the trial Court has framed the charge vide Exhibit 6 against both the accused for the offences punishable under sections 302, 397 read with section 114 of the Indian Penal Code and the same were explained to both of them. The accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Principal District and Sessions Judge, Porbandar.
2.3 Considering the evidence on record and after hearing the respective parties, ultimately, the trial Court has convicted the accused - appellants herein for the aforesaid offences and awarded the sentence as stated above.
3. It appears from the records that to prove the case, the Page 3 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined prosecution has examined the following witnesses:-
WITNESSES P.W.12 Madhabhai Nathabhai Exhibit 38 P.W.13 Mohanbhai Madhabhai Exhibit 40 P.W.14 Rameshbhai Madhabhai Exhibit 43 P.W.15 Harjibhai Naranbhai Exhibit 44 P.W.16 Harilal Dahyabhai Exhibit 45 P.W.18 Rekhaben Karabhai Exhibit 47 P.W.19 Karabhai Laljibhai Exhibit 49 P.W.20 Laljibhai Bhanjibhai Exhibit 50 P.W.21 Karabhai Sagabhai Exhibit 51 P.W.22 Kanabhai Karabhai Exhibit 52 P.W.23 Kamleshbhai Ramnikbhai Exhibit 53 P.W.24 Jaydevsinh Dilavarsinh Chudasama Exhibit 56 P.W.26 Nileshbhai Parbatbhai Odedara Exhibit 64 P.W.29 Manishbhai Mangalbhai Patel Exhibit 107 PANCH WITNESSES P.W.1 - Gopalbhai Bhimjibhai Kothari Exhibit 10 17 46 P.W.2 Shamjibhai Ramjibhai Exhibit 12 P.W.3 Vashrambhai Vejabhai Exhibit 15 P.W.4 Kasambhai Abdulbhai Exhibit 17 P.W.5 Anandbhai Valjibhai Exhibit 19 P.W.6 Pravinbhai Chimanbhai Exhibit 21 P.W.7 Lakhmanbhai Hirajibhai Exhibit 22 P.W.8 Govindji Khimjibhai Exhibit 25 P.W.9 Arifbhai Isabhai Exhibit 26 P.W.10 Pravinbhai Somabhai Exhibit 28 Page 4 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined P.W.30 Anandbhai Valjibhai Exhibit 112 DOCTOR WITNESS P.W.11 Dr. Varunbhai Arunbhai Mehta Exhibit 29 POLICE WITNESSES P.W.25 Kishorbhai Karshanbhai Patel Exhibit 59 P.W.27 Sangitaben Nathabhai Bapodara Exhibit 66 P.W.28 Dipsinh Merubha Jadeja Exhibit 71
4. In addition to this, the prosecution has also produced the following documentary evidence:-
1. Panchnama of opening the closed premises Exhibit 011
2. Posthumous Panchnama Exhibit 013
3. Panchnama of the scene of offence Exhibit 016
4. Seizure panchnama of specimen taken at the Exhibit 018 time of P.M.
5. Identification panchnama of gold jewelry Exhibit 020
6. Seizure panchnama of gold beads Exhibit 023
7. Identification panchnama of jewelry Exhibit 025
8. Seizure panchnama of blood samples of the Exhibit 027 accused
9. Postmortem note of deceased Exhibit 030
10. Yadi for doing P.M. Exhibit 031
11. Police report to do P.M. Exhibit 032
12. Letter of sealed sample Exhibit 033
13. Yadi made to the Medical Officer to ascertain Exhibit 034 the period of death
14. Medical Officer's report stating the period of Exhibit 035 death Page 5 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined
15. Yadi for taking blood of the accused Exhibit 036
16. Letter of sealed sample Exhibit 037
17. Complaint in the form of Section 154 of the Exhibit 039 Cr.P.C.
18. Access to authenticity and weight of gold Exhibit 054 receipt
19. Receipt of authenticity of gold Exhibit 055
20. Rojkam for preparation of map of the scene of Exhibit 057 offence
21. Map of place of offence Exhibit 058
22. Order of Inquiry Exhibit 060
23. Station Diary of Ranavav Police Station Exhibit 061
24. Yadi to fill inquest Exhibit 062
25. V.H.F. message Exhibit 063
26. Proclamation of Armed Force Exhibit 065
27. Station Diary of Ranavav Police Station Exhibit 067
28. Station Diary of Ranavav Police Station Exhibit 067
29. P.S.O's. Order about investigation Exhibit 068
30. Serious crime report Exhibit 069
31. V.H.F. Message Exhibit 070
32. Complaint Exhibit 072
33. Call form No. 15/2012 Exhibit 073
34. Primary FSL report of Porbandar Exhibit 074
35. Receipt to the dead body Exhibit 075
36. Yadi of details and location of the mobile Exhibit 076 phone of the accused.
37. Mobile call details Exhibit 077
38. Yadi of accused to be investigated Exhibit 078
39. Report by Police Officer to S.P. Alirajpur Exhibit 079
40. Dispatch letter of call details and call detail Exhibit 080
41. Yadi of map of the place of offence Exhibit 081 Page 6 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined
42. Action Plan Exhibit 082
43. Forwarding letter and forwarding note for Exhibit 083 sending muddamal to the FSL
44. Receipt with regard to receiving muddamal by Exhibit 084 the FSL Junagadh
45. Station Diary of Sodva Police Station Exhibit 085
46. List of the persons helping the Sodva Police Exhibit 086 Station
47. Information Letter written to Idaliben Hemanta Exhibit 087
48. Report regarding note of arrest of accused to Exhibit 088 be made in Station Diary
49. V.H.F. Message Exhibit 089
50. Permission to travel outside the State in Exhibit 090 government vehicle for inspection
51. Report made for medical examination of the Exhibit 091 accused
52. Medical examination report of the accused Exhibit 092
53. V.H.F. Message Exhibit 093
54. Forwarding letter of opinion received from FSL Exhibit 094 Junagadh and opinion
55. Report for going to Madhya Pradesh in vehicle Exhibit 095
56. Forwarding letter for sending muddamal to the Exhibit 096 FSL Junagadh and the forwarding note
57. Receipt for receiving muddamal by the FSL Exhibit 097 Junagadh
58. Muddamal receipt first 82/2012 Exhibit 098
59. Muddamal receipt first 85/2012 Exhibit 099
60. Muddamal receipt first 92/2012 Exhibit 100
61. Muddamal receipt first 93/2012 Exhibit 101
62. Muddamal receipt first 94/2012 Exhibit 102
63. Muddamal receipt first 96/2012 Exhibit 103
64. Dispatch letter of FSL Junagadh Exhibit 104 Page 7 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined
65. Opinion of FSL Junagadh Exhibit 105
66. Dispatch letter of FSL Junagadh and Exhibit 106 serological analysis report
67. Form filled at the time of purchase of mobile Exhibit 108 SIM Card
68. Election Card Exhibit 109
69. Letter from the mobile company regarding the Exhibit 110 phone number of the accused
70. Certificate given by Vodafone company Exhibit 111 regarding mobile phone number of accused
71. Panchnama of seizing the phone of the Exhibit 113 deceased
5. After closure of the evidence, the statements of the accused under Section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied having committed any offence and have stated that they are innocent.
6. After hearing both sides and considering the evidence on records, the learned Sessions Judge by impugned judgment and order dated 15.03.2013 has convicted the accused as stated hereinabove.
7. Heard Mr.P. V. Patadiya, learned counsel for the appellants
- accused and Mr.Jay Mehta, learned Additional Public Prosecutor for the respondent - State of Gujarat.
8. Mr.Patadiya, learned counsel for the appellants has submitted the same facts which are narrated in the memo of appeal and has submitted that the incident had taken place in Page 8 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined night hours and there was no any eye witnesses to the incident in question. He has submitted that the appellants accused are falsely implicated in the alleged offence of murder and as there was no direct evidence against them, the case is based on the circumstantial evidence and no complete chain was established by the prosecution by leading cogent and material evidence against the appellants. He has submitted that the witnesses examined by the prosecution are the interested witnesses and, therefore, their evidence cannot be believed. He has submitted that except the ornaments, which were found from the possession of the mother of the accused, no other evidence was led by the prosecution to connect the accused with the crime in question and the prosecution must have to prove the case beyond reasonable doubt and without there being any probability or possibility it cannot be proved and clinching evidence is required to be established by the prosecution to connect the accused with the alleged offence. He has submitted that in the present case, there is no direct evidence muchless which led to come to the conclusion that the accused are the sole responsible for alleged offence and, therefore, the appellants are required to be acquitted from the charges levelled against them. He has submitted that the dead body of the deceased lying in the room was closed from inside and it was opened from the outside, just like to break the door and under such circumstances, the accused were not in the premises. He has submitted that the accused have been involved in the alleged offence on suspicion and assumption as they were Page 9 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined cultivating the land of the deceased and, therefore, they have been falsely implicated in the alleged offence. He has relied upon the decision of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 and submitted that in the said decision, the Hon'ble Supreme Court has well established the principles in para - 150, 151 and 152. He has submitted that though no chain was completed, the conclusion arrived at by the trial Court is not tenable in the eyes of law and the findings are erroneous and illegal. He has submitted that the present appeal be allowed and the accused be acquitted from the charges levelled against them.
9. Per contra, Mr.Mehta, learned Additional Public Prosecutor for the respondent - State of Gujarat has submitted that the prosecution has able to establish the chain against the accused by producing cogent and convincing evidence with regard to the last seen together, evidence of the witness, in whose vehicle the accused fled away after commission of crime, call details of the accused and the ornaments of the deceased, which were found from the possession of the mother of the accused No.1. He has submitted that so all these links are clearly established the alleged offence committed by the accused and the prosecution has also produced relevant evidence before the Court below and, therefore, the trial Court has rightly recorded the conclusion after evaluating oral as well as documentary evidence which led to connect the accused with the crime beyond reasonable doubt.
Page 10 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined He has submitted that there is no any manifest error or irregularity or illegality committed by the trial Court, while convicting the accused for the alleged offence. He has submitted that the golden bead was found from the possession of the mother of accused No.1 namely Idaliben Hemanta and panchnama was also drawn and even the panch witness has also supported the case of the prosecution who accompanied the Investigating Officer to the residence of the accused at Madhya Pradesh and in his presence looted ornaments were seized and, therefore, the prosecution has able to establish the case against the accused. He has submitted that the motive is well founded that the accused intended to commit the offence of robbery of the ornaments worn by the deceased and in the said robbery, the deceased tried to save herself, but the accused have killed her by inflicting an axe blow. Mr.Mehta, learned APP has emphasized that prosecution witnesses i.e. P.W.12 Madhabhai Nathabhai at Exhibit 38, P.W.13 Mohanbhai Madhabhai at Exhibit 40 and P.W.15 Harjibhai Naranbhai at Exhibit 44 are the witnesses to the last seen together with the accused at the place of incident and their evidence was rightly relied upon by the trial Court and this is clinching evidence directly led to connect the accused with the alleged offence. He has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order of conviction deserves to be confirmed.
10. Before recording the reasons and findings to arrive at our Page 11 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined conclusion, let first reproduced the issues framed by the learned Sessions Judge, which read thus:-
1. Whether the prosecution has proved that the intervening night of 04.10.2012 and 05.10.2012, accused persons helped each other in the house of deceased Jamnaben Oghabhai, in the outskirts of Bhod Village of Ranavav Taluka of Porhandar District has committed an offence punishable under Section 114 read with Section 397 of the Indian Penal Code by causing grievous hurt to Oghabhai with intent to rob them or not?
2. Whether the prosecution has proved that on the aforesaid date, time and place in pursuance of the aforesaid incident, the accused assisted each other, to commit the murder of deceased Jamnaben Oghabhai for the offence punishable under Section 114 read with Section 302 of the Indian Penal Code or not?
3. Whether the prosecution has proved that the accused have committed the offence punishable under Section 135 of the Gujarat Police Act by carrying arms in public, despite the proclamation of the District Magistrate of confiscation of arms being in force at the aforesaid time or not?
4. What order?
10.1 After discussing the evidence of the witnesses and other documentary evidence, the trial Court has answered to issue No.1 and 2 in affirmative. The trial Court has rightly relied upon the evidence of the aforesaid witnesses who deposed with regard to last seen together with deceased Jamnaben and, thereafter, they have not found the accused at the place of offence when the dead body was found from the closed room which was occupied by the accused and their belonging was also lying in the said room. The accused have fled away in a vehicle, whose owner was P.W.21 Karabhai Sagabhai examined at Exhibit 51. Page 12 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined
11. On perusal of the evidence of P.W.21 Karabhai Sagabhai, it appears that this witness having the transportation vehicle and plying the same between Ranavav to Kutiyana - Upleta and the accused have contacted this witness as they wanted to reach at Rajkot and, therefore, they have engaged him and used the vehicle and left the place of occurrence at night hour and reached at Upleta near Bhole Hotel. So, the conduct of the accused was clear to flee away from the place of occurrence and even the golden ornaments worn by the deceased were found at the behest of the accused which were in possession of mother of accused No.1 and these are the circumstances which led the accused to connect with the alleged offence. On perusal of the medical evidence, it appears that the death caused during night hours between 04.10.2012 to 05.10.2012 and on that day after 10.30 hours, the accused called P.W.21 Karabhai and in his vehicle they fled away from the place of occurrence.
12. On perusal of the evidence of the complainant - Madhabhai Nathabhai, it appears that he has specifically stated that on the day of incident at about 7.30 to 8.00, he has seen the accused with the deceased and at the instance of the accused, the deceased Jamnaben stayed at the agriculture field instead of her home. From the cross-examination of the complainant, it appears that the prosecution has established the chain of circumstances beyond reasonable doubt. It is now well settled that merely the witnesses are relative of the deceased and their evidence cannot be brushed aside, but it is required to be Page 13 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined considered with great caution and if ultimately the evidence found to be reliable and believable then it can safely be relied upon. P.W.13 Mohanbhai son of complainant - Madhabhai has lastly talked with accused with regard to supply of electricity and he had made telephone call to accused at about 9.00 or 9.30 hours and, therefore, he has also supported the version of last seen together and his version is consistent and there was no any incriminating culled out by the defence. Though the defence has tried to raise suspicion as to whether the place of occurrence is an agriculture field or open access for the others, the defence has tried to raise suspicion, in fact, there was no evidence on record that the accused were at the agriculture field of the deceased, however, the prosecution has produced the cogent and valid evidence to this effect which lead to come to the conclusion that the accused were present at last seen together with the deceased and, thereafter, in the next morning, the deceased found in a cot lying with full of blood and quilt was led on the dead body. The trial Court has discussed in para - 45 with regard to circumstances, upon which the trial Court has relied and referred the same while coming to the conclusion that the prosecution has established the case against the accused beyond reasonable doubt. In para - 50 of the impugned judgment and order, the trial Court has referred the motive of the accused and last seen together and conduct of the accused and the ornaments worn by the deceased, which were found from the possession of the mother of accused No.1 and the accused fled away from the place of occurrence without Page 14 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined informing and intimating to the others. All these circumstances suggest the involvement of the accused in the crime in question.
It is well settled that in case of circumstantial evidence, the prosecution is able to establish the chain of circumstances and the guilt of the accused beyond reasonable doubt before the trial Court and the trial Court came to the conclusion that the accused were solely responsible and guilty for the alleged offence and, therefore, the trial Court has rightly convicted the accused. If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect.
13. While recording the conviction and referring the decision in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, the Hon'ble Supreme Court has summarized the law on the circumstantial evidence in the case of Shatrughna Baban Meshram Vs. State of Maharashtra reported in (2021) 1 SCC 596 more particularly Head Note N which reads thus:-
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. 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". Certainly, it is a primary principles 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 Page 15 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined 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."
14. It is well recognized and well settled law. In the present case the circumstances proved on record are not only conclusive in nature but completely support the case of the prosecution and are consistent with only one conclusion and that is involvement of the accused and the guilt of the accused. The prosecution has able to establish form a chain, so complete consistent and clear that there is no room for doubt or ground arises pointing towards innocence of the accused. Thus, it is established beyond instead of doubt that the accused are the culprit who have committed the act of robbery and murdered of the deceased Jamnaben and the postmortem note was supported the case of the prosecution and cause of death of the deceased was completely established.
15. The appellants are thus guilty of having committed the offences punishable under Sections 302, 397 read with Section 114 of the Indian Penal Code and are guilty of having committed ofefnces punishable under Sections 302, 397 read with Section 114 of the Indian Penal Code .
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16. In the case of Ramanand @ Nandlal Bharti Vs. State of Uttar Pradesh reported in 2022 AIR (SC) 5273 wherein the Hon'ble Supreme Court has held and observed in para - 45, 46, 47, 50 and 86 as under:-
"45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.Page 17 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025
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47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard.
50. 50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
86. The Courts below have relied upon the strong motive for the accused appellant to commit the crime as one of the incriminating circumstances. It is the case of the prosecution that the accused appellant desperately wanted to get married to Manju. Manju herself at the relevant point of time was a married lady. It appears from the evidence on record that the accused appellant had even got engaged with Manju during the subsistence of his marriage with the deceased Sangeeta. It also appears that the engagement ceremony was celebrated with pomp and show. However, before the accused appellant could get married to Manju, he got arrested in one offence under Section 307 of the IPC. According to the prosecution thereafter, although the accused appellant tried his best to get married to Manju, more particularly, after being released on bail yet as there was lot of opposition at the end of his wife deceased Page 18 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025 NEUTRAL CITATION R/CR.A/769/2017 JUDGMENT DATED: 04/02/2025 undefined Sangeeta, he was not able to marry her. In such circumstances, it is the case of the prosecution that the accused appellant decided to terminate his wife Sangeeta as well his four minor daughters on the fateful night of the incident."
17. Considering the materials on record, evidence of the witnesses and aforesaid decisions of the Hon'ble Supreme Court, this Court is of the opinion that the trial Court has not committed any error of law and facts in passing the impugned judgment and order of conviction and, therefore, no interference is required to be call for and the appeal being meritless deserves to be dismissed.
18. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, the appeal is dismissed. The impugned judgment and order dated 10.06.2014 passed by the learned Principal District and Sessions Judge, Porbandar in Sessions Case No.04 of 2013 is hereby confirmed. If the accused are on bail, they shall surrender to the custody. Record and proceedings be sent back to the concerned Trial Court forthwith.
(ILESH J. VORA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 19 of 19 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 22:48:32 IST 2025