Gujarat High Court
Janakbhai Kalubhai Bantiya vs State Of Gujarat on 31 January, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 597 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes
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JANAKBHAI KALUBHAI BANTIYA
Versus
STATE OF GUJARAT
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Appearance:
MR SAURIN A SHAH(791) for the Appellant(s) No. 1
MR. L.B. DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. This appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure against the judgement and order dated 26.02.2013 passed by the Additional Sessions Judge, Limbdi (hereinafter referred to as the "learned Trial Court") in Sessions Case No. 68 of 2012 Page 1 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined (old Sessions Case No. 61 of 2011). The appellant - original accused no. 1 along with 3 others - original accused nos. 2 to 4 were put on trial for the offences punishable under Sections 302, 201, 323 and 114 of the Indian Penal Code and the learned Trial Court was pleased to acquit accused nos. 2 to 4 and the appellant - original accused no. 1 was convicted for the offence under Section 302 and 201 of the IPC and sentenced to life imprisonment and fine of ₹500/- (Rupees Five Hundred only) and in default rigorous imprisonment for one month for the offence under Section 302 of the IPC and to rigorous imprisonment for three years and fine of ₹200/- (Rupees Two Hundred only) and in default, rigorous imprisonment for ten days for the offence under Sections 201 of the IPC. The learned Trial Court was pleased to further order both the sentences to run concurrently and the period of detention (if any) of the appellant was to be given as a set off against the sentence. 1.1 The appellant and the other accused who are acquitted are referred to as the accused in the rank and file as they Page 2 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 The complainant - Ghughabhai Mohanbhai Chuvaliya Koli Panara filed the complaint on 08.06.2011 that his son Ghanshyam @ Arvind was not at home at around seven in the evening and he inquired his whereabouts from his daughter-in-law - Bharti and she told him that he had gone out. At around 9.00 pm, once again, he inquired from his daughter-in-law who told him that he had not returned and he telephoned his friend Janak - accused no. 1 who told him that Ghanshyam was with him but he wanted to go to Devpura and would return late. That he slept off and the next morning, Ghanshyam had not returned hence, he inquired from the friends of Ghanshyam namely Janak Kalu Bantiya, Vika Jila Bantiya and Masa Jena Bantiya who told him that they were together at night but thereafter, they do not know where he went. Amkubhai Bachchubhai Panara told him that he had seen his son Ghanshyam and three to Page 3 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined four others at the farm of Janak Kalu and thereafter, at around 09.00 am, he was informed that the dead body of his son was hanging from a Gooseberry tree in the farm of Ramkubhai Mokabhai and he rushed to the place and found the dead body of his son hanging from the tree. After the postmortem, it was found that his son was strangulated and hence, as he had doubts and suspicion, he filed the complaint against the three friends of his son namely Janak Kalu Bantiya, Vika Jila Bantiya and Masa Jena Bantiya at the Muli Police Station under Sections 302, 201, 323 and114 of the IPC which was registered at I - C.R. 63 of 2011 on 09.06.2011.
2.2 The Investigating Officer collected the evidence, drew the necessary panchnamas including the inquest panchama, panchnama of the place of offence and sent the dead body of the deceased for postmortem. The statements of the connected witnesses were recorded and the muddamal was seized and sent to the FSL for analysis.
During investigation the involvement of Vika Jila Bantiya and Masa Jena Bantiya was not found and a report to delete Page 4 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined their names from the FIR was sent to the learned Judicial Magistrate First Class and as the involvement of the accused Janak Kalu Bantiya and the others was found in the offence, the accused were arrested and their clothes were collected and sent to the FSL and after the analysis reports were received, a charge-sheet came to be filed before the Court of the Judicial Magistrate First Class, Muli. As the case was exclusively triable by the Additional Sessions Court, Surendranagar at Limbdi, a committal order under Section 209 of the Code of Criminal Procedure was passed and the case was registered as Sessions Case No. 61 of 2011.
2.3 The accused appeared before the learned Trial Court and it was verified whether the provisions of Section 207 of the Code of Criminal Procedure was complied with and a charge was framed against all the accused at Exh. 8 and the statements of all the accused were recorded at Exhs. 11 to 14 respectively. The accused denied all the contents of the charge and the evidence of the prosecution was taken on record. The prosecution examined 29 witnesses and Page 5 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined produced 29 documentary evidences in support of their case and after the learned APP filed the closing pursis at Exh. 98, the further statements of all the accused under Section 313 of the Code of Criminal Procedure were recorded wherein all the accused denied all the evidence of the prosecution produced on record. All the accused refused to step into the witness box or lead evidence and examine witnesses and after the arguments of the learned APP as well as the learned advocate for all the accused were heard, the learned Trial Court was pleased to find the accused no. 1 guilty for the offence under Sections 302, 201 and 323 of the IPC and sentenced the accused no. 1 as mentioned above. The learned Trial Court was pleased to give benefit of doubt and acquit the accused nos. 2 to 4.
3. Being aggrieved and dissatisfied with the judgement and order of conviction, the appellant - original accused no. 1 has filed the present appeal mainly stating that the learned Trial Court has failed to appreciate that the prosecution has not proved the case beyond reasonable doubts and the learned Trial Court ought to have Page 6 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined appreciated that there is no direct or indirect evidence indicating the guilt of the appellant. The learned Trial Court has misread the testimony of the witnesses and the ingredients of Sections 302, 201 and 323 read with Section 114 of the IPC are not satisfied. The appellant is made a scape goat and is not even remotely connected with the alleged offence and the findings are absolutely perverse, unjustified and contrary to the evidence on record. The circumstantial evidence does not indicate that the appellant has committed the offence and the panch witnesses have not supported the case with the prosecution. Witness Maheshbhai @ Masabhai Jemabhai has stated some contradictory story and his name was also mentioned in the FIR and his testimony could not be relied upon to convict the appellant. The complainant has admitted that the deceased was having friendship with the appellant and the same was not liked by him and it is proved that due to some dispute with the appellant he has named the appellant in the FIR. There is no admissible evidence and the impugned Page 7 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined judgement and order is erroneous, bad in law and is required to be quashed and set aside.
4. We have heard learned Advocate Mr. Saurin A. Shah for the appellant and learned APP Mr. L. B. Dabhi for the respondent state. We have also perused the impugned judgement and order and the evidence produced by the prosecution before the learned Trial Court.
5. Learned Advocate Mr. Saurin A. Shah for the appellant submits that the motive for the crime is that the deceased and the appellant were having an illicit relation, which was not approved by the family members of the deceased and the entire case rests on the evidence of Maheshbhai Jemabhai who was shown as an accused in the FIR along with one Vikabhai Jilabhai. The evidence of this witness cannot inspire confidence as being trustworthy as the claim of the witness is that the accused forced them to go to his Wadi at about 08.00 pm on 08.06.2011 and the prosecution has not examined Mukesh Panara at whose shop, they had gone to have mava. The prosecution has not examined Page 8 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined Vikabhai Jilabhai and the attempt of the Investigating Officer to get his statement recorded under Section 164 of the Code of Criminal Procedure failed and it creates a serious doubt about the role attributed to Vikabhai Jilabhai. The version of witness Maheshbhai that his hands were tied and his waist was also tied, is not substantiated by the recovery of any cot or cloth pieces at the scene of offence and it is the say of the witness that after witnessing the assault on the deceased, he ran away and went to his house and watched TV for some time but did not inform his family members or the family members of the deceased. This conduct creates a serious doubt about his credibility and the fact that this witness and Vika Jila were originally shown as accused creates a serious doubt about the witness. The medical evidence reveals that there was a tattoo mark depicting "Janak love Anu" and this shows that the family members of the deceased did not approve of the relationship. The evidence also discloses that Mahesh did not inform the father of the deceased regarding the whereabouts of the deceased that he had witnessed the Page 9 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined incident alleged to have taken place on the night of 08.06.2011. The panch witnesses have not supported the case of the prosecution and are hostile and no incriminating circumstances are established in the evidence of the prosecution. Learned Advocate further submits that the appeal be allowed and the appellant be acquitted from all the offences.
6. Learned APP Mr. L. B. Dabhi has taken this Court through the entire evidence of the prosecution on record and has submitted that the circumstances point towards the guilt of the appellant and the evidence of the eye witness is fully reliable. During the lengthy cross-examination there is nothing on record to break the credibility of this witness and the evidence proves that the appellant had strangulated the deceased with the handkerchief. The medical evidence proves that the death of the deceased was asphyxia due to strangulation and the prosecution has proved the case beyond reasonable doubts. The learned Trial Court has appreciated all the evidence which point to the guilt of the accused and the appeal of the appellant must be rejected Page 10 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined
7. Before we proceed to decide the appeal, it would be appropriate to reproduce the observations of the Apex Court in the case of Lal Mandi V. State of West Bengal reported in 1995 Cri LJ 2659 regarding the duty of the appellate Courts in hearing of appeals in conviction matters which is as under:
5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the Trial Court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets Page 11 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the Trial Court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence...... 7.1 In RE: Right to Privacy of Adolescents Suo Moto Writ Petition (C) No. 3/2023 with Criminal Appeal No. 1451/2024 decided on 20.08.2024, the Apex Court in para 13 has observed as under:
13. When a Court deals with an appeal against an order of conviction, the judgment must contain (i) a concise statement of the facts of the case, (ii) the nature of the evidence adduced by the prosecution and the defence, if any, (iii) the submissions made by the parties, (iv) the analysis based on the reappreciation of evidence, and (v) the reasons for either confirming the guilt of the accused or for acquitting the accused. The Page 12 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined appellate court must scan through the evidence, both oral and documentary, and reappreciate it. After reappreciating the evidence, the appellate court must record reasons for either accepting the evidence of the prosecution or for disbelieving the evidence of the prosecution. The Court must record reasons for deciding whether the charges against the accused have been proved. In a given case, if the conviction is confirmed, the Court will have to deal with the legality and adequacy of the sentence. In such a case, there must be a finding recorded on the legality and adequacy of the sentence with reasons. The ultimate object of writing a judgment is to ensure that the parties before the Court know why the case is decided in their favour or against them. Therefore, judgment must be in a simple language. The conclusions recorded by the Court in the judgment on legal or factual issues must be supported by cogent reasons.
8. In light of the above, we have minutely perused and thoroughly considered the evidence led by the prosecution on record of the case which is as under :
8.1 The prosecution has examined PW1 - Bharatbhai Bachchubhai Gadh at Exh. 16 and PW2 - Matrabhai Devshibhai Khabhla Rabari at Exh.18 and both the Page 13 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined witnesses are the panch witnesses of the panchnama of the place of offence produced at Exh. 17. The witnesses have stated that they had merely affixed their signatures on the ready panchnama and they have not gone with the police to any place of incident. The witnesses have not supported the case of the prosecution and have been declared hostile and during the cross-examination by the learned APP nothing to support the case of the prosecution has come on record. 8.2 The prosecution has examined PW3 - Raibhanbhai Shivabhai Panara at Exh. 21 and the witness has stated that on 09.06.2011 he and the other panch witness -
Raymalbhai Shardulbhai Aghara had gone near the wadi of Ramkubhai Mokabhai Khachar and the Dog Squad of the Rajkot Police was called and the procedure of the dog squad was explained to them. A dog named "Niti" was brought from the police van and taken to the Gooseberry tree at the place of incident and there was a rope and slippers lying there and the dog sniffed the slippers and went about 800 meters to 1000 meters towards the western edge of the field and there was a yellow handkerchief with small dotted Page 14 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined design about 2 x 1½ feet lying there. The witness has identified the handkerchief before the learned Trial Court and has stated that the procedure was done in his presence and the police had seized the handkerchief. During the cross-examination by the learned advocate for the accused, the witness has stated that the panchnama was prepared in his presence and the police were writing the panchnama and he had affixed his signature.
8.3 The prosecution has examined PW4 - Nirubha Jorubha at Exh. 25 and the witness is the panch witness of the panchnama produced that Exh. 28, whereby, the Investigating Officer seized the clothes of deceased - Ghanshyambhai @ Arvindbhai Ghughabhai worn at the time of the incident which were brought by Constable - Jayeshbhai Patel after the Medical Officer performed the post-mortem on the dead body of the deceased. The witness has fully supported the case of the prosecution and has identified the clothes and his signatures on the panch slips. 8.4 The prosecution has examined PW5 - Laghubhai Bhudarbhai at Exh. 29 and PW6 - Lavjibhai Bhimabhai at Page 15 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined Exh. 35 and both the witnesses are the panch witnesses of the panchnama produced at Exh. 30, whereby, the Investigating Officer had arrested all the accused and had seized the clothes worn by them at the time of the incident. Both the witnesses have stated that no panchnama was drawn in their presence and no clothes were seized in their presence. Both panch witnesses have been declared hostile and during the lengthy cross-examination by the learned APP nothing to support the case of the prosecution has come on record.
8.5 The prosecution has examined PW7 - Navghanbhai Hirabhai Batiya at Exh. 37 and PW8 - Bhanabhai Bhayabhai Parmar at Exh.43. Both the witnesses are the panch witnesses of the panchnama produced at Exh. 38 whereby the accused no. 1 voluntarily, in the presence of the panch witnesses, agreed to show the place where the incident had taken place and the panch witnesses along with the accused no. 1 and police personnel went to the place as shown by the accused no. 1 and the Investigating Officer seized about 50 grams of sand, 100 grams mud with Page 16 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined blood and 50 grams of mud as control sample. Thereafter ,the other accused nos. 2 to 4 were also taken one by one and they too showed the place of incident. The witnesses have not supported the case of the prosecution and have been declared hostile and during the lengthy cross-examination by the learned APP nothing to support the case of the prosecution has come on record. 8.6 The prosecution has examined PW9 - Hasmukhbhai Nanjibhai at Exh. 44 and the witness has stated that he was working in the factory of Ramkubhai Khachar since last 18 years and on 09.06.2011 around 10.00 am, someone told him that there is a dead body hanging from the Gooseberry tree and he went and saw the dead body of the deceased hanging and he telephoned Ramkubhai Khachar and they informed the police. The entire procedure was done by the police and he had seen that the dead body had abrasions and the rope was hanging from the other side. The dead body was of Arvindbhai Ghughabhai Koli and he was an effeminate person who was friendly with the accused no. 1 and due to their relationship, there were problems with the Page 17 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined family of the accused no. 1. During the cross-examination by the learned advocate for the accused, the witness has stated that he is not an eye witness to the incident and came to know about the dead body hanging from the tree after someone told him. That about 50 to 60 persons had gathered at the place and he knows the accused as they were working nearby his factory.
8.7 The prosecution has examined PW10 - Ramkubhai Mokabhai Khachar at Exh. 45 and the witness is the owner of Paragon Ceramic and he has stated that on 09.06.2011, Hashmukhbhai @ Chako called him and informed him that there was a dead body hanging from a Gooseberry tree in his Wadi and he told them to inform the police. That when he came to his factory, he saw the dead body of Arvind son of Ghugha Mohan hanging from the tree and the police had arrived and he saw that the dead body had abrasions on the face, hands and cheek. During the cross-examination, the witness has stated that he is not an eye witness to the incident but came to know about the same after Hashmukhbhai @ Chako informed him.
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NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined 8.8 The prosecution has examined PW11 - Karsanbhai Sukhabhai Chuvaliya Koli at Exh. 46 and the witness has stated that he was informed on the telephone that the dead body of his nephew Ghanshyam @ Arvind was hanging from a tree in the premises of Ramkubhai Kathi and he immediately went and saw the dead body hanging from the tree. The police had arrived and they asked him to lower the dead body and he climbed on the tree and untied the rope with his left hand and the dead body was placed on the ground. After the procedure, the dead body was sent for post-mortem. During the cross-examination, the witness has stated that he was informed about the incident on the telephone and he could identify the accused as they are of the same village.
8.9 The prosecution has examined PW12 - Bachchubhai Ramjibhai Panara at Exh. 48 and the witness has stated that on 09.06.2011, he was going to his field and saw that a number of people had gathered near the premises of Ramkubhai Khachar and he went and saw the dead body of Arvind hanging from the tree. That he telephoned Page 19 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined Ghughabhai Mohanbhai and informed him about the same and Ramkubhai, the police and Mamlatdar came and the panchama was drawn and the dead body was sent for post- mortem.
8.10 The prosecution has examined PW13 - Dhirubhai Mohanbhai Chuvaliya Koli Panara at Exh. 49 and the witness has stated that on 09.06.2011, he was informed on the telephone that the dead body of Ghanshyam @ Aravind was found hanging on the Gooseberry tree in the wadi of Ramku Khachar and he came and saw the dead body hanging from the tree. The police and Mamlatdar had come and after the procedure, the dead body was sent for post- mortem. The deceased was friendly with the accused and the complaint was filed by the father of the deceased against the accused. During the cross-examination by the learned advocate for the accused, the witness has stated that he could identify the accused as they are of the same village. 8.11 The prosecution has examined PW14 - Amkubhai Bachchubhai Chuvaliya Koli Panara at Exh. 50 and the witness has stated that the accused no. 1 had called him to Page 20 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined have mava when he had gone to drive the tractor in the field of Gordhanbhai; and he, Gordhanbhai and the accused no. 1 had mava and sat on the tank in the field and at that time, Arvindbhai and Masabhai Jemabhai had also come from the village and sat on the water tank. That thereafter, as it became dark he and Gordhanbhai had gone to the village and Arvindbhai, the accused and Masabhai Jamabhai waited there. That on the next day while he was taking his tractor and passing by the field of Ramkubhai, he saw the dead body of Arvind hanging from the Gooseberry tree. During the cross examination by the learned advocate for the accused, the witness has stated that he is not an eye witness to the incident.
8.12 The prosecution has examined PW15 - Nathabhai Ramsinghbhai Panara Chuvaliya Koli at Exh. 51 and the witness has stated that he had seen the dead body of Arvind hanging from the tree and the police and others had come and the procedure was done by the police. 8.13 The prosecution has examined PW16 - Gordhanbhai Gokalbhai Batiya Chuvaliya Koli at Exh. 52 and the witness Page 21 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined has stated that on 08.06.2011 while he was at his field and Amkubhai Bachubhai was driving the tractor, at around 07.00 pm the accused no. 1 was in his field and Amkubhai called the accused no. 1 to have mava and all the three of them sat and at that time, Arvind and Masa came and sat on the edge of the water tank and after some time, he and Amkubhai left with the tractor. The next morning, the dead body of Arvind was found hanging from the Gooseberry tree. During the cross-examination by the learned advocate for the accused the witness has stated that he does not have personal knowledge about the incident. 8.14 The prosecution has examined PW17 - Maheshbhai @ Maso Jemabhai Chuvaliya Koli Batiya at Exh. 53 and the witness has stated that on 08.06.2011, the accused no. 1 telephoned him and told him to bring Arvind and come to Wagadia and 15 days prior to the incident, the accused no. 1 had told him that he would give him some knowledge and enlighten him and he came home and watched TV for sometime and thereafter went to Arvind's house. Arvind was in the field and was not at home, and his wife told him that Page 22 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined he was at the field and he returned to his house and watched TV. After sometime while he was going to Arvind's house, he saw Arvind standing near the house of the accused no. 1 and he told him that the accused no. 1 had telephoned and called them to his field. Both of them went to Vikram's house and on inquiry, they were told that Vikram had gone to Umar village and they came and had mava from the shop of Mukesh Panara. Both of them went to the field of Gordhanbhai and found Ankur, Gordhan and the accused no. 1 sitting on the bed and they sat on the tank and after some time, Gordhan and Ankur went home and he, Arvind and the accused no. 1 stayed back. The accused no. 1 told them that they would go to the other field and Arvind refused to go and they sat there but the accused no. 1 forced them and took them to his field. That while they were going to the field, they met Devshi - the elder brother of the accused no. 1 who told the accused no. 1 to return home after the electricity had gone and all three of them went to the field of the accused no. 1. It was around 08.00 pm and the accused no. 1 went into his field to attend to the Page 23 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined water and returned after sometime and told them that he would give them knowledge and enlighten them. That he and Arvind refused but the accused no. 1 swore and tied his hands with a handkerchief and to the bed and his waist with a lungi. The accused no. 1 was circling the tree and Arvind was standing near the bed and suddenly the accused no. 1 came and strangled Arvind with his handkerchief on his neck and threw him down. The witness thought that the accused no. 1 would kill him and he got his hand released and fled away. At that time, Arvind was lying on the floor on his face and the accused no. 1 was striking him and telling him that he had ruined his life. The witness returned home and while he was watching TV, the accused no. 1 came to his house and threatened him not to tell anyone what he had seen or he would be in trouble and asked him to come to his house to sleep but he refused as he was afraid. That he did not have food and only had milk and the accused no. 1 had murdered Arvind and he had witnessed the incident and at the time of the incident, the accused no. 1 and the deceased were at the field. The witness has identified the Page 24 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined clothes worn by the deceased at the time of the incident and the handkerchief; and has stated that this is the same handkerchief by which the deceased was strangled. The witness has also identified the clothes worn by the accused no. 1 at the time of the incident. The witness has also stated that the deceased Ghanshyam @ Arvind, Vikram @ Vikki, Harshad Kesha and he are friends and during the Ramdev Pir Theatre used to perform the roles of women and they were called effiminate by the village people. The accused no. 1 and the deceased identified themselves as husband and wife and the accused used to call the deceased "Anu" and they had an illicit relationship which was told to him by the deceased. The accused no. 1 had told him that Arvind was not coming to his field for the past two months and he had also told him that he could not live without Arvind.
During the cross-examination by the learned advocate for the accused, the witness has stated that he did not tell his family members that the accused no. 1 had tied him with the handkerchief to the cot and he did not file a complaint regarding the same. That he did not tell the Page 25 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined family members of Arvind about the incident and he came to the police station and immediately told the police about the same. At the time of the incident, Arvind had won a red T- shirt and he had not named any other person besides the accused no. 1 in his police statement.
8.15 The prosecution has examined PW18 - Kiranben Harshadbhai Panara Chuvaliya Koli at Exh. 55 and the witness is the sister-in-law of the deceased who has stated that on 08.06.2011, her father-in-law did not see her brother-in-law - Ghanshyam and at around 09.00 pm, asked Bharti - the wife of the deceased, whether Ghanshyam was at home or not and she told him that he had not returned home. That her father-in-law went to the field and they telephoned the accused no. 1 who told them that the deceased was saying that he wanted to go to Devpura and they thought that he would return late and they slept off. That in the morning, her father-in-law found that the deceased had not returned home and went to the house of the accused no. 1 and his other friends and they all told him that they were together at night but they do not Page 26 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined know where he had gone thereafter. The accused no. 1 used to call her brother-in-law Anu and her brother-in-law - Ghanshyam and his two friends Vika Jila and Masa were effiminate and they would be in the company of the accused no. 1. Her husband - Harshad had gone to inquire about Ghanshyam and he was informed that the dead body of her brother-in-law was hanging from the Gooseberry tree at Ramkubhai's field and the police were informed. The deceased Arvind had a feminine walk and the accused no. 1 would not come into the house as her father-in-law did not like the relation of the accused no. 1 and the deceased and her father-in-law would restrain him from keeping such relationship.
During the cross-examination by the learned advocate for the accused, the witness has stated that at the time of the incident she had gone to the hospital at Than and when Ghanshyambhai came back from the field, they all were at home. That all the family members would scold the deceased as he used to play the role of women and she knew the accused as they were of the same village. Page 27 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025
NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined 8.16 The prosecution has examined PW19 - Natwarsinh Pratpsinh Chauhan at Exh. 56 and the witness was working as Mamlatdar, Muli and on 09.06.2011 he was called to draw the inquest panchnama of the dead body of the deceased.
8.17 The prosecution has examined PW20 - Bhartiben Arvindbhai Panara at Exh. 58 and the witness is the wife of the deceased who was married to the deceased about 12 months prior to the incident. The witness has stated that her husband would wear feminine clothes and play the roles of women and used to wear her clothes also and he was good friends with the accused no. 1, Vika Jila and Masa and they used to frequently come to her house. The accused no. 1 was a special friend and on the date of the incident, she had taken food and gone to the field in the afternoon and they all had their lunch and she returned home. At evening Masa came to her house and inquired about her husband and she told him that he had gone to the field and when he returned, she told him that Masabhai had come to inquire about him. That her husband had a juice and went into the Page 28 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined village and after sometime Masa once again came to her house to call her husband and she told him that her husband had gone towards his house. In the evening, her father-in-law asked her where Arvind was and she told him that he had juice and had gone to the village and would be sitting with his friends and would return late but her husband did not return at night. On the next morning, her father-in-law inquired and she told him that he had not returned home and her father-in-law called the accused no. 1 and went into the village but the accused no. 1 told him that he was to go to Devpura. That her brother-in-law, Vikram and the accused no. 1 went to Devpura to look for her husband and later on, they came to know that the dead body of her husband was hanging in the field of Ramkubhai and her father-in-law had gone to see the same. That the family members would restrain the deceased from being friends with the accused no. 1 and during the theatre, the accused no. 1 would play the role of a male and her husband would play the role of a female. Page 29 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025
NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined 8.18 The prosecution has examined PW21 - Ghughabhai Mohanbhai at Exh. 60 and the witness is the father of the deceased who has stated that on the day of the incident, the deceased had not returned home and he inquired about his son from his daughter-in-law - Bharti. On the next day, he went and inquired about his son from the accused no. 1 and his other friends Vika Jila and Masa who told him that they all were together at night and they do not know where Ghanshyam had gone thereafter. Ankubhai Bachchubhai Panara had told him that he had seen his son Ghanshyam and three to four other persons and on the next morning, he was informed on the telephone that the body of his son Ghanshyam @ Arvind was hanging from the Gooseberry tree in the field of Ramkubhai Mokabhai. The police and Mamlatdar had arrived and he had seen abrasions on the eyes, cheek, and hands on the dead body of his son. The witness has identified the rope by which the dead body of his son was hanging, the handkerchief and the clothes worn by his son at the time of the incident and he had filed the complaint on 09.06.2011 which is produced at Exh. 61. Page 30 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025
NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined During the cross-examination by the learned advocate for the accused, the witness has stated that he had given the names of the persons in the complaint on the basis of suspicion and his son used to play the role of a woman in the Ramapir Theatre. That he did not like his son being friendly with the accused no. 1.
8.19 The prosecution has examined PW22 - Dr. Asit Ramapati Kumar at Exh. 63 and the witness is the Medical Officer who was on duty at Community Health Centre, Muli on 09.06.2011 and had performed the postmortem on the dead body of the deceased along with panel doctor - Dr. B. P. Singh between 03.10 pm to 06.10 pm. The witness has stated that there was a tattoo mark of "OM" on the right forearm and another leaf shape tattoo mark with "JANAK LOVE ANU" in the middle and a strong string was tied tightly around the neck and bleeding were seen in both the nostrils which was clotted on appearance. As per column no. 17, the following injuries were found:
1. Two ligature marks seen on the neck away from each other. The first one is very prominent over the outer neck region. The first ligature mark completely Page 31 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined encircles the neck transversely below the thyroid cartilage. This ligature mark is 12 cm L x 1/2 inch B x 1/4 inch D. Strong string fitted fully in the first ligature mark.
2. The second ligature mark is not very prominent, seen on right side of neck and continued upward up to right post pinnae of ear and downward it continued up to first ligature mark. It is 12.5 cm in length x 1/4 inches B x 1/4 inches deep. Distance between two ligature marks is 1 cm on right side of neck and 3 cm on right lateral side of neck. Ligature knot is prominently. seen on right lateral side of neck and fracture of thyroid cartilage is seen.
3. Bruise on the right upper maxillary region 4 cm L x 1 cm B. Colour is blackish in appearance.
4. Bruise 1 cm diameter on right side of chin.
5. Bruise on right side of frontal region 1cm L x 1/2 cm B lies 1 cm above the eyebrow.
6. Bruise on right upper lateral arm, 1/2 cm L X 1/4 cm B.
7. Black colour bruise seen on left side of hole upper and lower eyelids hole around the left eye orbit.
8. On examination left side of eyeball is fully damaged, left side of conjunctivae is haemorrhagic in appearance.
9. Both the shoulders were fully dislocated at shoulder joint.
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NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined As per the opinion of the panel doctors, the cause of death was asphyxia cardio respiratory failure as a result of strangulation and the postmortem note is produced that Exh. 65.
During the cross-examination, the witness has stated that the injuries found on the body were antemortem and strangulation could be caused by muddamal article no. 4 - the handkerchief.
8.20 The prosecution has examined PW23 - Jayeshbhai Ratilal Patel at Exh. 73(A) and the witness is the Police Constable who had collected the clothes of the deceased after the postmortem and handed it over to the Investigating Officer.
8.21 The prosecution has examined PW24 - Dolatsinh Hamjobhai Jadeja at Exh. 74 and the witness is the Armed Police Head Constable incharge of the Dog Squad and he has stated that he had brought dog named "Nikki" on 09.06.2011 at 21:30 hours and has narrated the procedure that was done by the Dog Squad at the time of the incident and the dog "Nikki" had gone to the place where the Page 33 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined handkerchief was lying which was seized by the Investigating Officer.
8.22 PW25 - Kalyanbhai Jivabhai Vaghela is the Circle Officer who has prepared the map of the place of incident which is produced at Exh. 78.
8.23 PW26 - Alpesh Shamjibhai Ugreja examined at Exh. 79 is the Police Constable Muli Police Station who had taken the muddamal parcels and handed them to FSL, Rajkot 8.24 PW27 - Ilyasbhai Parvezbhai Solanki examined at Exh. 81 is the PSO who had registered Muli Police Station Accident Death No. 14 of 2011 on receipt of the information from Ramkubhai Mokabhai Khachar that the dead body of Ghanshyam @ Arvind Ghughabhai Panara Koli was found hanging in his field. The witness has narrated the procedure that he had undertaken and had thereafter registered the complaint filed by the complainant - Ghughabhai Mohanbhai Chuvaliya Koli before PSI K. P. Joshi at Muli Police Station I - C. R. No. 63 of 2011 under Sections 323, 302, 201 and 114 of the IPC.
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NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined 8.25 PW28 - Karamvir Ramkumar Yadav examined at Exh. 87 is the PSO Muli Police Station who seized the clothes of the deceased vide the panchnama produced at Exh. 28. 8.26 The prosecution has examined PW29 - Keshavlal Parshottambhai Joshi at Exh. 88 and the witness is the Investigating Officer who has narrated the entire procedure that was undertaken by him during investigation. During the cross-examination, the witness has stated that he was informed about the incident on mobile by Rambhai Khachar at around 11.00 am and he had reached the place of incident with his staff members. The Mamlatdar was called for the Inquest Panchnama and the dead body was taken down and he had taken down the complaint of the complainant which had the names of Janak Kali, Masa Jena and Vika Jila. During investigation, the involvement of the accused nos. 2 to 4 was found and they were arrested. A report was sent to the learned Magistrate to delete the names of the persons against whom no evidence was found from the FIR.
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9. Having heard learned advocates appearing for the parties and having gone through the materials on record, the only question that arises for determination in this appeal is whether in the facts and circumstances of the present case, the learned Trial Court was justified in passing the order of conviction under Sections 302 and 323 of the IPC?
10. We have minutely perused the evidence of the prosecution on record and find that as per the case of the prosecution, the accused no. 1 has committed the murder of the deceased and the case of the prosecution mainly rests on the evidence of PW17 - Maheshbhai @ Masabhai Jemabhai Chuvaliya Koli Batiya. As per the case of the prosecution, the witness was friends with the accused no. 1 and the deceased and immediately prior to the deceased being found dead, the witness was in the company of the accused no. 1 and the deceased. Admittedly, the complaint filed by the complainant - PW21 - Ghughabhai Mohanbhai has been filed against accused no. 1, PW17 - Maheshbhai @ Masa and one another common friend Vika Jila Batiya. The Page 36 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined complainant has expressed doubts that the three of them had got together and had strangulated his son and had thereafter, hanged his body on the Gooseberry tree. The Investigating Officer - PW29 - Keshavlal Parsottambhai Joshi cross-examined at Exh. 88 has stated that during investigation, out of three names mentioned in the FIR, there was no evidence against two accused and their involvement was not found in the offence and he had filed a report to remove their names from the FIR before the learned Trial Court. Hence, during investigation itself, the name of PW17 was removed from the FIR and he was mentioned as witness in the charge-sheet. PW17 - Maheshbhai @ Masa has stated that on 08.06.2011, he had received a phone call from the accused no. 1 to bring the deceased and come to meet him and twice he had gone to the house of the deceased where he met the wife of the deceased as the deceased was not at home and he inquired about the deceased from his wife. The fact that PW17 - Maheshbhai @ Masa has gone to the house of the accused is corroborated by the evidence of PW20 - Bhartiben Page 37 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined Arvindbhai Panara - the wife of the deceased who has stated that Maheshbhai @ Masa had come twice to her house and as her husband was not at home, she had told him that he was not at home. PW17 - Maheshbhai @ Masa has thereafter, stated that he met the deceased and went with the deceased to the Wadi of Gordhanbhai where he saw Amkubhai, Gordhanbhai and the accused no. 1 sitting on the cot and he and the deceased went and sat on the water tank and thereafter, Gordhanbhai and Amkubhai went home and the accused no. 1, the deceased and he were together. This say of the PW17 - Maheshbhai @ Masa is fully corroborated the evidence of PW14 - Amkubhai Bachubhai Chuvaliya Koli Panara examined at Exh. 50 and PW16 - Gordhanbhai Gokalbhai Batiya Chuvaliya Koli examined at Exh. 52. Both the witnesses have exactly narrated the same things and Amkubhai has stated that he, Gordhanbhai and the accused no. 1 were sitting after having mava, when the deceased and Maheshbhai @ Masa came and sat on the water tank and after some time, Amkubhai and Gordhanbhai left and the three of them were Page 38 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined alone at the water tank. Hence, the say of Maheshbhai @ Masa regarding his visit to the house of the deceased and being with the deceased and the accused no. 1 is fully corroborated by the evidence of Bhartiben Arvindbhai, Amkubhai Bachubhai and Gordhanbhai Gokalbhai. 10.1 PW17 - Maheshbhai @ Masa has thereafter stated that the three of them went to the Wadi of the accused no. 1 and at that time, the accused no. 1 told them that he would give them some knowledge and enlighten them and both of them refused and the accused no. 1 forced them and the accused no. 1 tied his hands with the handkerchief to the bed and his waist with a lungi and the deceased was standing near the bed when suddenly the accused no. 1 came and started strangling the deceased with a handkerchief on his neck and threw him down. This act of the accused no. 1 was seen by the witness and as the witness got afraid that the accused no. 1 would also kill him, he got his hands released and fled away. As per the postmortem note produced at Exh. 67 in column no. 17, ligature marks were found on the neck of the deceased and the body of the deceased was Page 39 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined found hanging by a rope from the tree. The postmortem note shows that there were two ligature marks on the neck away from each other and the first one was very prominent completely encircling the the neck and the second mark was not very prominent. The Medical Officer who has performed the postmortem on the dead body of the deceased and examined as PW22 - Dr. Asit Ramapati Kumar has stated that the cause of death is asphyxia and cardio respiratory failure as a result of strangulation and has opined that if the handkerchief - Muddamaal Article No. 4 was wrapped around the neck of a person and pulled with force, death could occur. As far as Muddamaal Article No. 4 - the handkerchief is concerned, PW17 - Maheshbhai @ Masa has identified it as the same handkerchief that was used by the accused no. 1 around the neck of the deceased at the time of the incident and it is also on record that PW24 - Police Head Constable - Dolatsinh Hamjubha Jadeja - the member of the Dog Squad, Rajkot had brought a dog "Nicky" who had gone about 800 to 1000 mts. on the western side of the field where the handkerchief was lying Page 40 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined and the handkerchief was found and seized by the Investigating Officer. Hence, it is proved that the handkerchief was the same handkerchief that was used by the accused no. 1 and identified by the PW17 - Maheshbhai @ Masa at the time of the incident.
10.2 As per the case of the prosecution, the motive for the offence was the illicit relationship between the accused no. 1 and the deceased and all the witnesses have stated that the entire village was aware about the relationship between the accused no. 1 and the deceased. PW17 - Maheshbhai @ Masa has stated that the accused no. 1 had told him that the deceased was not visiting him at his Wadi for the past two months and he could not live without the deceased. The fact of the relationship between the deceased and the accused no. 1 is also corroborated by the evidence of PW22
- Dr. Asit Ramapati Kumar at Exh. 63 and the postmortem note produced at Exh. 65 which shows that there was a tattoo mark in the shape of a leaf with "Janak love Anu"
over the lateral side of mid left arm and the witnesses have Page 41 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined stated that the deceased was called as "Anu" by the accused and the other friends.
10.3 Learned advocate for the accused has vehemently argued that the evidence of of PW17 - Maheshbhai @ Masa could not be relied on as he was earlier a suspect in the FIR and as per the judgement of the Apex Court in R. Dineshkumar @ Dina Vs. State represented by Inspector Police & Ors. as the witness was an accused, he could not have been put into the witness-box without a tender of pardon from the learned Trial Court. It is pertinent to note that in the instant case, at the first instance, the complainant had stated that he had doubts and suspicions regarding the death of his son on the accused no. 1 and his two other friends - Maheshbhai @ Masa and Vika Jila and he had doubts that they three had, for some reasons, murdered his son, but during investigation, the Investigating Officer found that there was no role of Maheshbhai @ Masa and Vika Jila in the offence and the role of other accused nos. 2 to 4 was found and hence, a report was sent to the learned Magistrate to remove the Page 42 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined names of Maheshbhai @ Masa and Vika Jila from the FIR and as Maheshbhai @ Masa was an eye witness to the incident, he was shown as a witness in the charge-sheet. It is not the case of the prosecution that after filing of the charge-sheet, Maheshbhai @ Masa has been shown as a witness and this fact has come on record during the cross- examination of the PW29 - Investigating Officer - PSI - Keshavlal Parsottambhai Joshi. Hence, the arguments of the learned advocate for the accused are not sustainable.
11. In view of the above discussion and after carefully dissecting the evidence of the prosecution on record, we find the evidence of eye witness PW17 - Maheshbhai @ Masa fully reliable and believable as his say has been corroborated by the evidence of other witnesses and hence, we are inclined to accept the evidence of the prosecution. There is ample evidence on record about the motive and we find that the learned Trial Court has discussed the entire evidence at length and has concluded that the motive has been proved beyond reasonable doubts that the death was Page 43 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025 NEUTRAL CITATION R/CR.A/597/2013 JUDGMENT DATED: 31/01/2025 undefined caused by the handkerchief - Muddamaal Article No. 4 which was witnessed by PW17 - Maheshbhai @ Masa.
12. As discussed above, after meticulous dissection of the evidence of the prosecution we are of the considered opinion that the judgement and order passed by the learned Trial Court is passed after giving proper and cogent reasons and the learned Trial Court is fully justified in convicting the accused no. 1 from all the charges levelled against him. This Court does not find any illegality, perversity or infirmity in the findings recorded by the learned Trial Court and is in complete agreement with the findings, ultimate conclusion and resultant order of conviction.
13. We do not find any reason to interfere with the impugned judgement and order of conviction and the present appeal is devoid of merits and is resultantly dismissed. The impugned judgement and order of conviction passed by the Additional Sessions Judge, Limbdi in Sessions Case No. 68 of 2012 (old Sessions Case No. 61 of 2011) on 26.02.2013 is hereby confirmed. Page 44 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025
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14. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd-
(ILESH J. VORA,J) Sd-
(S. V. PINTO,J) VASIM S. SAIYED FURTHER ORDER After pronouncement of the judgment learned advocate Mr. Saurin Shah for the appellant submits that the appellant is on bail pending appeal and request for some time to surrender.
Considering his request, we deem it fit to grant eight weeks time to the appellant to surrender before the Jail Authority.
Sd-
(ILESH J. VORA,J) Sd-
(S. V. PINTO,J) VASIM S. SAIYED Page 45 of 45 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:54 IST 2025