Gujarat High Court
Janakbhai Kalubhai Bantiya vs State Of Gujarat on 31 January, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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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
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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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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
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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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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
