Gujarat High Court
State Of Gujarat vs Budhaji Manaji Thakore on 5 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
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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
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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
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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.
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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
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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
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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
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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
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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
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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."
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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
