Gujarat High Court
Bhuval Chhedilal Saroj(Pasipasvan) vs State Of Gujarat on 29 July, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1183 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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BHUVAL CHHEDILAL SAROJ(PASIPASVAN)
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR MATAFER R PANDE(3952) for the Appellant(s) No. 1
MR VINAY VISHEN, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 29/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The appellant is before this Court under the
provisions of Section 374 of the Code of Criminal Procedure
1973 against the judgment and order of conviction dated
21.2.2017 passed in Sessions Case No.38 of 2015 by the
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learned Additional Sessions Judge, Navsari convicting the
appellant accused under section 302 of Indian Penal Code
by imposing sentence of life imprisonment and ordered to
pay a fine of Rs.2000/-, in default, to undergo further two
years rigorous imprisonment and also sentenced him under
section 135 of Gujarat Police Act for six months and also
ordered to pay a fine of Rs.500/-, in default, to undergo
further one month rigorous imprisonment. Both the
sentences were ordered to run concurrently.
2. The facts of the case in nutshell are as follows :
2.1 It is the case of the prosecution that on
12.10.2014, the complainant Shakir Mahammad Jamati
who is the neighbour of the accused was called by his wife
to immediately come to the residence as she had seen from
the window of the neighbour i.e. accused's house that there
is blood on the floor and that house is locked, after which
the complainant informed the owner of the shop where he
was working and where the accused was also working and
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the police was called; thereafter, the door was broken
opened and dead body of the accused's wife was found on
the floor and blood was also oozing out. On the basis of the
aforesaid facts, the FIR came to be registered before the
Chikhli Police Station being CR No.I - 169 of 2014.
2.2 After completion of investigation, the chargesheet
was filed before the concerned jurisdictional Magistrate
which came to be registered as Criminal Case No.43 of
2015. Since the case was exclusively triable by the court of
Sessions, the same was committed before the learned
Sessions Court and was registered as Sessions Case No.38
of 2015.
2.3 Vide Exh.12, the charge was framed against the
accused. Vide Exh.13 plea of the accused was recorded and
having denied the charges, the trial was conducted wherein
the prosecution relied upon the following witnesses and
documentary evidences.
ORAL EVIDENCES :
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Witness Name of witnesses Exh.
No.
accused)
2 Dr.Arun Baburao Sonvane (Doctor who examined 19
the dead body)
Neighbour)
(Panchnama of scene of offence and panchnama of
physical verification of accused)
5 Panch - Zarina Shakir Malik (Inquest Panchnama) 41
6 Investigating Officer - Mahendrasinh Amarsinh Kher 45
(Police Inspector)
7 Executive Magistrate - Rajeshbhai Chhotubhai 61
Patel (who prepared the Inquest)
8 Investigating Officer - Dakshesh Bhikhubhai Patel 63
(C.P.I.)
9 Witness - Harishbhai Naginbhai Mistry (Landlord of 72
the house where the accused was residing on rent)
DOCUMENTARY EVIDENCES :
Sr. Details of Document Exh.
No.
5 Panchnama of physical verification / arrest of the 26
accused.
6 Slip containing the signatures of the panchas 27 to
7 Panchnama for production of clothes of deceased 40
9 Letter regarding map of the place of offence 44
12 Letter written for issuing certificate of examination of 48
body
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16 Letter written to the Deputy Director, Surat 52
2.4 Vide Exh.69, the witnesses which were not
examined came to be dropped, whereas vide Exh.70, the
prosecution filed the closing purshis. At the end of the trial,
after recording the statement of the accused under section
313 of the CrPC and hearing the arguments on behalf of the
prosecution and the defence, learned trial Court delivered
the judgment and order, as stated above.
3. Being aggrieved and dissatisfied with the same,
the appellant has preferred the present appeal.
4. Learned advocate Mr.M.R.Pande appearing for
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the appellant accused would contend that :
(a) The entire case is based on circumstantial
evidence.
(b) There are no eye witnesses in the present case.
(c) That entire chain of circumstances proving the
guilt of the accused is not established.
(d) That the learned trial Court has convicted the
appellant only relying upon section 106 of the Indian
Evidence Act.
(e) That the learned trial Court also materially erred
in not considering the deposition of PW 1 - Mustufa
Umarbhai Sumra at Exh.14, who is the owner of the shop
where the accused was working, who has not supported the
case of the prosecution and has also deposed to the effect
that the accused had already informed him that he was
going to Mumbai for sharpening of tyre cutting knife (Rapi)
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and also taken money from this witness.
(f) That learned trial Judge has failed to consider the
factum that no one even heard the noise of brutal murder,
more particularly, the complainant and his wife who are
neighbours have deposed on oath.
(g) That learned trial Judge has failed to consider
that the complainant has not seen the commission of
offence and has no personal knowledge and has also not
deposed to the effect that he has seen last with the
accused's deceased wife.
(h) That except the evidence of neighbouring
witnesses who have deposed in such a manner which does
not take the case of the prosecution any further.
(I) That learned trial Court ought to have granted
the benefit of doubt and acquitted the accused. However,
by passing the impugned judgment and order of conviction
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has committed grave and serious error both on facts and
law and has argued to allow the appeal.
5. On the other hand, learned APP Mr.Vinay Vishan
has argued that on going through the deposition of the
complainant who is neighbour i.e. Shakir Mahammad at
Exh.22 along with the deposition of Zarina Shakir Malik at
Exh.41 and that of the Investigating Officer coupled with the
fact that only accused, his wife alone were staying at the
residence and in such circumstances, learned trial Court
relying upon section 106 of the Indian Evidence Act has
rightly convicted the appellant since he has failed to
discharge onus with regard to the circumstances within his
knowledge. It is argued that there is no misreading of oral
as well as documentary evidence by the learned trial Court
and therefore, learned trial Court has correctly passed the
judgment of conviction. Thus, it is argued that no
interference is required at the hands of this Court and the
appeal is required to be rejected.
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6. We have perused the Record and Proceedings of
the case and have also given our thoughtful consideration to
the submissions made by learned advocates for the
respective parties.
7. At the outset, it is required to be noted that it is
an admitted fact that entire case of the prosecution is based
on circumstantial evidence and there is no eye witness and
that there is no CDR report placed on record.
8. At this stage, it would be fruitful to refer to the
principles governing the circumstantial evidences as
summarized by the Honourable Apex Court in a celebrated
judgment in Sharad Birdhichand Sarda vs. State of
Maharashtra reported in (1984) 4 SCC 116 which are to
be proved by the prosecution, as under :
(i) That chain of evidence is complete;
(ii) Circumstances relied upon by prosecution
should be conclusive in nature;
(iii) Fact established should be consistent only
with the hypothesis of the guilt of accused;
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(iv) Circumstances relied upon should only be
consistent with the guilt of the accused;
(v) Circumstances relied upon should exclude
every possible hypothesis except the one to be
proved.
Considering the aforesaid principles laid down by the
Honourable Apex Court, this Court now has to decide on the
anvil of the depositions of the witnesses as to whether the
prosecution has proved its case beyond reasonable doubt,
more particularly, by completing the chain of circumstances
pointing finger of guilt towards the accused or not ?
9. PW 1 - Mustufa Umarbhai Sumra has been
examined at Exh.14 who is the owner of the shop where the
accused was serving has no personal knowledge with regard
to the incident and thus, he is not an eye witness. He was
informed by the co-worker i.e. PW 3 - Shakir Mahammad
Muslim on his mobile that the wife of the accused is lying
on the floor and asked him to immediately come to the place
of incident. He has further deposed that room was locked
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from outside which was broken opened. However, he did not
went inside the room. He has further deposed that by
arriving at the room where the accused was residing since it
was locked, he telephoned Bhuval - appellant accused and
asked as to where he was, to which he was informed that he
would come around 5 to 6 O'clock since he went for
sharpening tyre cutting knife (Rapi). However, this witness
has been declared hostile. Nothing concrete has come on
record from the deposition of this witness so as to take the
case of the prosecution any further despite cross examined
by learned Public Prosecutor. In the cross examination by
the defence, this witness has admitted that on the date of
alleged offence, the accused had already informed in
advance that he was going to Mumbai for sharpening tyre
cutting knife (Rapi) for which money was also given and had
also travelled to Mumbai.
10. PW 3 - Shakir Mahammad Muslim has been
examined at Exh.22 who is co-worker and neighbour of the
accused. He has deposed to the effect that the accused had
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come to reside at the place where he was residing only 1
and 1/2 months back and has also informed that his family
would also come to reside along with him. He has also
deposed to the effect that after completing his daily chores,
he left for his job on 7.7.2013 in the morning and at that
time, his wife telephoned him and informed that to
immediately come to the residence where his wife informed
that window of the accused's room is opened and peeping
inside, blood is found in the kitchen and one lady was lying
covered by bed-sheet and could see her legs. After which,
he telephoned his boss and on his arrival, he also observed
and then called the police. The police had also peeped from
window and then broke opened the lock, after which they
went inside the room where they found that it was wife of
the appellant accused - Bhuval. There were injuries on her
head, neck, chest and shoulder and blood was oozing out.
The witness informed the police and lodged the complaint
and that accused Bhuval had fled to Mumbai. That the wife
of the accused i.e. Madhuben had come on 10 th of the
month in which, the incident took place and thus, the
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complaint at Exh.23 was filed.
On cross examination of this witness, he has
admitted that Bhuval - accused resides just near the room
after where he resides. He also admitted that toilet and
bath-room are next to Bhuval's room and all the persons
who are residing nearby the room used the said toilet and
bath-room. He also admitted that Bhuval - accused was to
go to Mumbai for sharpening of tyre cutting knife (Rapi) for
which he also informed his boss. He has also admitted that
he does not know as to who has murdered Madhu (Bhuval's
wife).
11. PW 4 - Mahammad Ilyas Tajmahammad Khan
has been examined at Exh.24 who is the Panch of
panchnama of place of incident and physical verification of
the accused. This witness, after having been declared
hostile, has supported the case of the prosecution on being
cross examined by the learned Public Prosecutor. On cross
examination by the defence, the witness has admitted that it
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is so happened that the police was writing panchnama and
panchas were dictating the same. He has also admitted the
fact that while entering the room, dead body was not
covered with any cloth or bed-sheet. He has admitted that if
the police is stating that in his presence, the lock was
broken, then this fact is not true. He has also admitted that
on the second day, Jamadar Ashok had telephoned him and
called. Thus, the factum of carrying out panchnama of
place of offence and the panchnama of physical verification
of the accused is not proved beyond reasonable doubt
coupled with the fact that the Investigating Officer has been
examined at Exh.45 has also not proved the contents of the
panchnama by deposing the factum of panchnama in his
deposition.
12. PW 5 - Zarina Shakir Malik has been examined at
Exh.41. However, in the cross examination, she has stated
that it is true that if someone is fighting next to their room,
they would be able to hear. However, on her own volition,
she states that if they are sleeping in the night, they would
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not have heard. She admitted that if someone shouted
loudly, they can listen easily. She has admitted that if
someone shouts for help, they may also know easily.
13. PW 7 - Rajeshbhai Chhotubhai Patel has been
examined at Exh.61 who has prepared the inquest of
deceased Madhuben. However, this witness is a formal
witness and does not take the case of the prosecution any
further except for the fact of what was seen by this witness
on the dead body.
14. PW 6 - Mahendrasinh Amarsinh Kher has been
examined at Exh.45 and PW 8 - Dakshesh Bhikhubhai
Patel has been examined at Exh.63. Both the witnesses are
the Investigating Officers of the present case. However, the
work in relation to the investigation and their official duty
have come on record, but the factum of proving of the
panchnama as stated hereinabove is not proved. On the
contrary, in the cross examination of witness - Dakshesh
Patel, he has admitted that during his investigation, it came
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to be disclosed that the accused was going to Mumbai for
sharpening tyre cutting knife (Rapi). This fact was also
stated to his boss Mustufa. In examination-in-chief,
Mahendrasinh Kher - PW 6 another Investigating Officer
has stated to the effect that when the accused was going
towards Uttar Pradesh in train from Mumbai, he was
arrested on the basis of the call details and tower location
and the accused was also taken to the Doctor for medical
treatment since he has injury on his thumb and has also
obtained certificate. However, it is required to be noted that
such certificate is not placed on record so as to prove that
there was injury on the thumb of the accused. It is also
required to be noted that injury was grievous or not is also
not coming on record. It is also required to be noted that
CDR details on the basis of which accused came to be
apprehended from the train are also not placed on record.
15. On perusing the judgment of the learned trial
Court at Exh.77, it transpires that learned trial Judge based
upon the provisions of section 106 of the Indian Evidence
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Act has convicted the accused on presumption that no one
locked the door from the outside except husband. That tyre
cutting knifes (Rapi) four in numbers were recovered from
the accused and from which blood was also found that of
the deceased. That tickets muddamal Nos.24 to 27 for
travelling to Mumbai and thereafter from Mumbai to
Gorakhpur is also proved and thus has believed the fact of
accused not being present at the time of offence and was at
Mumbai and has thus, by invoking the provisions of section
106 of Indian Evidence Act has convicted the appellant
accused.
16. On perusal of the impugned judgment and also
on perusal of the depositions of various witnesses, as stated
hereinabove, it cannot be said that the prosecution has
been able to prove the case based on circumstantial
evidence by proving various links and the chain of evidences
satisfactorily and such circumstances to establish the guilt
of the accused with reasonable definiteness and thus false
explanation or non-explanation of circumstances within his
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special knowledge cannot be used as additional link to
convict the accused. This essential conditions ought to
have been satisfied which are missing in the present case.
In absence of fulfilling of these conditions only, the Court
can use false explanation or false defence as additional link
to lend as assurance to the Court and not otherwise. Thus,
there is vital difference between in complete chain of
circumstances and circumstances which after chain is
complete is added to it merely to reinforce conclusion of the
Court. Thus, chain of evidence is not so complete to arrive
at the conclusion to hold the accused guilty and it is not so
that in all human probabilities the act has been done by the
accused. In absence of such missing link, reliance placed
by the learned trial Judge on Section 106 of Indian Evidence
Act is totally misplaced and this Court has no hesitation in
holding that the learned trial Court has fell in error both on
facts and in law in holding the accused guilty.
17. It is required to be noted that there is no one who
has seen the accused along with his wife either in the
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intervening night or in the morning nor neighbouring
witnesses who have deposed before the learned trial Court
heard the noise of cries while murdering the wife of the
accused by the accused himself, more particularly, when
the Doctor who had performed the postmortem has stated
18 injuries on the body of the victim, more particularly, on
the head and neck and on the chest and back of the
deceased. It is also required to be noted that it has come on
record that the accused was having injury on his thumb as
stated on oath by the Investigating Officer that accused was
taken for treatment, more particularly, when there is
certificate of his treatment placed on record since Exh.49 is
Medico Legal Certificate issued by the Medical Officer,
Referral Hospital, Chikhli and it discloses only bruise
wound on the thumb of 2 x .5 cm which seems to be
superficial injury and cannot be said to be link of
committing murder of his wife. Thus, non-explanation of
injury to the accused is not fatal nor could it be link in
proving the case of murder by the accused. Thus, the
prosecution has failed to complete the link of chain of
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circumstances and the benefit of doubt ought to have been
given to the accused.
18. On overall facts and circumstances of the case,
we are of the view that the following foundational facts
ought to have been established by the prosecution justifying
invocation of principles enshrined under section 106 of the
Indian Evidence Act.
(a) Though offence took place inside the four walls of
the house, the accused has disputed his presence which is
proved from the depositions of his boss as well as his
neighbour who is also co-worker.
(b) That no fight between the husband and wife has
been either witnessed or any one has heard shouting or
seen the incident despite of inflicting several injuries to the
deceased.
(c) Nothing on record has been brought by the
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prosecution to prove that relationship between the deceased
wife and accused was strained and has thus failed to prove
motive of the accused to commit crime.
(d) The accused being working at the tyre shop, tyre
cutting knife (Rapi) being found from his room was natural,
therefore, it cannot be said that weapon is discovered at the
instance of accused as per provisions of Section 27 of the
Indian Evidence Act.
In absence of these foundational facts being established in
the chain of circumstances, Section 106 cannot be invoked
to make out inability of the prosecution and thus, the
prosecution has failed to discharge its onus by proving all
the elements necessary to prove the offence. At this stage,
reference is required to be made to the decision of the
Honourable Apex Court in the case of the State of Madhya
Pradesh Vs Balveer Singh, reported in 2025 INSC 261
wherein it is observed thus :
"76. Section 106 cannot be invoked to make up
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the inability of the prosecution to produce
evidence of circumstances pointing to the guilt of
the accused. This section cannot be used to
support a conviction unless the prosecution has
discharged the onus by proving all the elements
necessary to establish the offence. It does not
absolve the prosecution from the duty of proving
that a crime was committed even though it is a
matter specifically within the knowledge of the
accused and it does not throw the burden on the
accused to show that no crime was committed. To
infer the guilt of the accused from absence of
reasonable explanation in a case where the other
circumstances are not by themselves enough to
call for his explanation is to relieve the
prosecution of its legitimate burden. So, until a
prima facie case is established by such evidence,
the onus does not shift to the accused."
19. It is also required to be noted that the charge
against the accused is to the effect that on 12.10.2012 at
about 1.00 to 1.15 in the midnight, deceased Madhu @
Kalavati Bhuval was talking on her mobile phone with
someone by saying that "I love You" and also "Kissed" on the
phone which the accused heard and on asking his wife as to
whose phone it was and at that time the deceased Madhu
got angry with the accused and that the accused got angry
and murdered his wife. However, on perusal of the
deposition of Shakir at Exh.22 who is the complainant and
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the complaint is at Exh.23, not a single word to this effect is
on record. Therefore, the question which remains to be
answered by the prosecution as to how did the talk between
the husband and wife came on record. It clearly transpires
that while preparing the panchnama of physical verification
of the accused after his arrest, the accused has admitted his
guilt before the Police Officer which is recorded in the
panchnama at Exh.26 (though not proved). The same is
referred to point out infirmities in the prosecution case.
Thus, it is well settled principles of law that any confession
during the custody or even before the police is not
admissible in evidence.
20. Thus, on overall reappreciation of the evidences
both oral and documentary, this Court is of the considered
view that impugned judgment and order passed by the
learned Sessions Judge, Navsari dated 21.2.2017 in
Sessions Case No.38 of 2015 is required to be set aside.
21. Under the circumstances, the appeal succeeds
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and the same is allowed. The impugned judgment and order
passed by the learned Sessions Judge, Navsari dated
21.2.2017 in Sessions Case No.38 of 2015 is quashed and
set aside. The accused is acquitted of the charges leveled
against him. The accused be set at liberty if in jail and if not
required in any other case. Record and Proceedings be sent
back forthwith.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
H.M. PATHAN
