Gujarat High Court
State Of Gujarat vs Budhaji Manaji Thakore on 5 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 679 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BUDHAJI MANAJI THAKORE & ORS.
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Appearance:
MR TIRTHRAJ PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
MS KHUSBOO TAANK for HL PATEL ADVOCATES(2034) for the
Opponent(s)/Respondent(s) No. 2,3,4,5,6,7
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
Date : 05/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The appeal under Section 378 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") challenges the judgment and order of acquittal dated 5.3.1999 passed by the learned Additional Sessions Judge, Sabarkantha Camp at Modasa in Sessions Case no.84 of 1996.
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2. The State has primarily raised a ground that the acquittal is contrary to the law and evidence on record. The learned Trial Court Judge has failed to appreciate the direct and indirect evidence to connect the accused for the crime and that the learned Judge has not appropriately appreciated the oral and documentary evidence on record. It is also stated in the grounds of appeal memo that the learned Trial Court Judge has not appropriately appreciated the fact that there is no eye-witness in the present case and the entire case is depended on the circumstantial evidence. That the son of the complainant - Vinod was having love affair with the daughter of Thakor Gabhaji Varsangji, named, Sajjanben and due to the love affair, they had ran away and the persons from Patel and Thakore group had gone in search of those persons and therefore, it becomes apparent that the persons who had gone to search them must have caused murder of the deceased - Vinod.
3. Heard Mr. Tirthraj Pandya, learned Additional Public Prosecutor for the State, who has referred to the observations of the learned Trial Court Judge and has submitted that the said fact of love affair is prima facie Page 2 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined clear on record and the evidence to that effect is the Matador, which is a corroborating piece of evidence, where the deposition would show that Visaji and Budhaji had pushed the deceased - Vinod, while they were drinking tea and that circumstance would become suspicious drawing the guilt towards the accused. Learned APP has further stated that the evidence is on record that the accused were beating the deceased - Vinod and thereafter, had ran away. The corroborating evidence is of Shanabhai who was having a Tea Stall, inspite of that, though there was evidence to show that both, the deceased and Sajjanben had ran away and because of the fact that the accused were not liking the relationship, the evidence on record show that the accused have murdered deceased-Vinod.
4. The incident is of 5.4.1996, where it is alleged that all had gathered at about 05:00 a.m. and had taken the deceased - Vinod in Matador no. GJ-1 V-1239 and had given kick and fist blows and had caused injury with Dismis (screw driver), which had led to murder and therefore, the charge under Sections 302 and 201 of IPC read with Section 34 of IPC was framed.
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5. The prosecution has examined about thirteen witnesses.
The glaring fact on record is that there is no eye-witness to the incident. The circumstantial evidence, which has been drawn before the learned Trial Court was that on 15.3.1996, Vinod had left for his job and had not returned back. It was the case that Vinod was having illicit relations with Sajjanben and therefore, they had eloped. Thakore and Patel communities of the village were searching both Vinod and Sajjanben, who are at present the accused. The phone call had come to Dhansura Police Station that they have received dead body of one boy and in a yellow colour Metador, Vinod and Sajjanben had left together. Vinod was in love relation with Sajjanben who belonged to Thakore community and therefore, all the people of Thakore community got excited and thus, the allegation is that they have done him to death. The learned Trial Court Judge has raised the point for determination. The circumstantial evidence of the deceased leaving for his job, has not been proved by any evidence of any witnesses, nor there is evidence on record that on 15.3.1996, the complainant and Vinod were together and thereafter, they had started his Page 4 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined search. This could not be proved by the circumstantial evidence. The evidence on record and the deposition of the witnesses do not prove that the deceased was having relation with Sajjanben. However, Sajjanben has not been examined during the trial to prove any such relationship or for that matter, the intent of the accused to do away with Vinod. The complainant had stated that he had received a phone call from Ramanbhai Keshabhai. Ramanbhai Keshabhai has not been examined to establish the circumstances of the knowledge of death of Vinod. As per the complainant, all the accused with the Panch had gone in search of Vinod and Sajjanben and the dead body of Vinod was found on 5.4.1996 and therefore, the circumstances would draw the presumption against the accused.
6. The learned Trial Court has observed the evidence of the witnesses. On verification of the evidence, the fact of Vinod as well as Sajjanben eloping in yellow colour Matador could not be proved, since the owner of the Matador no. GJ-1 V- 1239 - Prahladji Vajaji - PW10, in his deposition, has stated that he was working as a Conductor on the vehicle. Page 5 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025
NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined He stated that the accused - Budhaji and Visaji had called him and had informed that they were required to go to the house of maternal uncle of Sajjanben. However, the evidence of Prahladji, thus, would prove that the instruction was given by the accused to search Sajjanben. Accordingly, as per the evidence of Prahladji Vajaji - PW10, the fact comes on record that Sajjanben was not found at the maternal uncle's place, but that evidence itself would not prove that Sajjanben was with the deceased. The prosecution has declared PW10 as hostile. However, the fact of the deceased and Sajjanben eloping together in a Matador is not proved during the trial.
7. The complainant - Ambalal, in his deposition, has deposed that the people of Thakore community were excited, while the evidence of PW13 - Manubhai Shambhubhai does not corroborate the said assertion of the complainant-Ambalal of Thakore community being enraged by the fact of the deceased and Sajjanben eloping from the Village. As per the evidence of PW13 - Manubhai Shambhubhai on 15.3.1996, his uncle's son Vinod had gone for his job at the bangle factory and since he did not return, they came Page 6 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined to know that Vinod had ran away with the daughter of Gabhaji. The accused belonging to Thakore community had made a search and in between, the fact became known to them on 5.4.1996 by the phone. The fact, though becomes proved that the accused, as a member of Thakore community, had joined the complainant for the search, itself would not be sufficient to draw the conclusion that they were the persons who had murdered Vinod.
8. PW3 - Arvindbhai Jesingbhai Patel stated that he had seen dead body near Dhansura bus station on 5.4.1996. He could not identify the dead body. Panchnama Exh.25 was drawn. He was shown the clothes of the deceased and according to his deposition, the police has merely got his signature on the ready Panchnama and has also affirmed in his deposition that in the Panchnama, it has not been noted that there was dead body lying. Thus, the evidence does not corroborate of the dead body recovered near the S.T. stand, as of Vinod.
9. Even PW4 - Shailesh Ramanbhai has not supported the prosecution case. Shailesh Ramanbhai was a driver of Matador no.GJ-1 V-1239.
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10. PW5 - Narsinhbhai Babubhai was declared hostile. He has not supported the Panchnama at Exhs.29 and 30, which was drawn in accordance to under Section 27 of the Indian Evidence Act, 1872, but the ingredients, which are necessary for proving the Panchnama have not been led in evidence. Since Panchas have not supported the Panchnama, the said fact does not get proved.
11. PW7 - Popatbhai has identified his signature below Exh.32 and Panch stated that the accused Visaji had shown the jack only that fact gets proved during the trial. However, all the other witnesses had not supported the prosecution case.
12. PW11 - Bhailalbhai was the person as a Panch in Exh.39, which is of Matador, from where the blood stain samples were recovered. Mere presence of blood stains in the Matador would not be a concrete proof to connect the accused as the circumstances has to be connected with the proof.
13. The learned Trial Court Judge was of an opinion on verification of the evidence that the complaint was given by Page 8 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined the complainant at Sarkhej Police Station and prior to the complaint, there was an accidental death report at Dhansura Police Station. The complainant had not seen the dead body of Vinod at Dhansura Police Station. The first information about the death was given by Ramanbhai, but Ramanbhai has not been examined. The clothes and the purse, which were recovered was in connection with the accidental death report. There was no identification of the dead body and therefore, the fact became suspicious for the learned Trial Court Judge. The learned Judge has come to the conclusion that there is no evidence on record that the deceased and the accused were all in one vehicle and also the fact also does not become proved that the deceased was along with Sajjanben. The evidence on record of the witnesses do not support the fact that all the accused had taken the deceased in the vehicle and had killed him and only at the instance of the Panch of the village, the accused were making search of the deceased. The fact becomes known that Vinod had died on 5.4.1996 and the evidence, as could be drawn from the record. was an accidental death. The Panchnama regarding the place of offence could not be said to be proved. The Muddamal were Page 9 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined sent for examination which was open shirt, pant and the cotton, which shows the blood group "B". However, though the Muddamal was produced, it could not be proved that it belonged to the deceased. Thus, the learned Judge has rightly disbelieved of any connection with the clothes and though the FSL report was on record, the learned Judge has not believed the circumstances of presence of blood connecting the accused with that of the deceased since there was no evidence on record that the deceased was traveling in the Matador. There is also no evidence to prove that the accused - Visaji Varsangji and Budhaji Manaji pushed the deceased Vinod from the Tanker. The learned Trial Court Judge, thus, concluded that the death has occurred as he had come under the tanker and the death being an accidental death, could be proved from the evidence on record. The learned Judge has rightly concluded that it would be very difficult for Vasaji and Budhaji to push Vinod, while they were drinking tea and that circumstance becomes suspicious. The allegation that the accused were beating Vinod and thereafter, had ran away with Matador also does not get proved since Panchnama Exh.30 shows presence of Matador at the bus Page 10 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined depot and the evidence of Shanabhai, Tea Stall owner also does not corroborate the fact. Thus, it could not be proved beyond reasonable doubt that the accused had thrown the dead body of the deceased, while Exh.41 shows on record that it was an accidental death and since the prosecution could not prove the case beyond reasonable doubt, the learned Judge has acquitted the accused.
14. In the case of Darshan Singh v. State of Punjab, (2010) 2 SCC 333, it has been observed as under:-
"61. In a case of acquittal, if the trial court's view is a possible or plausible view, then the Appellate Court or the High Court would not be justified in interfering with it. It is the settled legal position that there is presumption of innocence and that presumption is further fortified with the acquittal of the accused by the trial court. The Appellate Court or the High Court would not be justified in reversing the judgment of acquittal unless it comes to a clear conclusion that the judgment of the trial court is utterly perverse and, on the basis of the evidence on record, no other view is plausible or possible than the one taken by the Appellate Court or the High Court."
15. The evidence on record does not suggest any eye-witness. It is a case of circumstantial evidence. The link of the circumstantial evidence has to be proved as laid down in Page 11 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025 NEUTRAL CITATION R/CR.A/679/1999 JUDGMENT DATED: 05/07/2025 undefined the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, wherein the Hon'ble Supreme Court had concluded while dealing with the conditions which are required to be fulfilled to establish the case against the accused on circumstantial evidence. The said conditions read as under:-
"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."Page 12 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025
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16. The learned Trial Court has come to its own conclusion, which view is possible on the evidence on record, we do not find any reason to interfere in the acquittal. The appeal, therefore, fails and is hereby dismissed.
(GITA GOPI,J) (UTKARSH THAKORBHAI DESAI, J) Maulik Page 13 of 13 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:05:25 IST 2025