Gujarat High Court
Jitendra @ Jigo @ Jigneshbhai ... vs State Of Gujarat on 8 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. 617 of 2014
With
CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 2 of 2025
In
R/CRIMINAL APPEAL NO. 617 of 2014
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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JITENDRA @ JIGO @ JIGNESHBHAI BHAILALBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Appellant
MR ADITYA JADEJA APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 08/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the accused Jitendra
@ Jigo @ Jigneshbhai Bhailalbhai Parmar, under
Section 374(2) of the Code of Criminal Procedure,
1973 is directed against the judgment of conviction
and order of sentence dated 20.03.2014 passed by
the learned 2nd Additional Sessions Judge, Ahmedabad
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(Rural) in Sessions Case No.58 of 2012 by which the
appellant accused has been convicted under Sections
302, 397 and 201 of the Indian Penal Code and
sentenced as tabulated hereinunder:
Conviction under Punishment Fine In default of
Section fine
Section 302 of IPC Imprisonment Rs.5,000/- SI for 6 Months
for life
Section 397 of IPC Imprisonment Rs.3,000/- SI for 3 Months
for 7 years
Section 201 of IPC Imprisonment Rs.3,000/- SI for 3 Months
for 7 years
2. The case of the prosecution leading to conviction of
the appellant accused is as follows:
2.1 The accused appellant was charged with the rape and
murder of victim aged about 22 years old and after
committing her murder, he looted ornaments and cash
amount and causing disappearance of the evidence of
the offence.
2.2 The accused and victim are resident of Vadodara. The
victim was in relations with one Rakesh, resident of
Vadodara who happened to be a friend of the
appellant, as a result, the accused was in touch with
her. On 13.05.2011, the accused called her the victim
under the pretext that her friend Rakesh was waiting
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for her. On arrival of the victim, the accused
convinced her to come with him at Ahmedabad. At
that time, the victim was engaged with someone and
her marriage was going to be solemnized in the next
month or so. The accused invited his friend PW:10
Sachinsingh Rajput to accompany him so that they
enjoyed together in the company of the victim. The
trio came to Ahmedabad at about 03:00 p.m. They
travelled by public transport. They came near railway
track, Sanathal Cross Road, Changodar, Ahmedabad,
where the accused found one room in a dilapidated
condition. The victim was taken inside the room where
the accused appellant committed and act of rape and
unnatural sex upon her. The witness PW:10
Sachinsingh Rajput did not have taken any benefit of
the situation and was standing nearby the room.
Thereafter, the accused appellant and PW:10
proceeded towards the railway bridge. When they
reached near the railway pole 32/5, the appellant
stabbed the deceased multiple time with the knife
which he carried with him. The dead body was thrown
near the railway track. According to the prosecution
case, the victim deceased when she left the home,
had carried a cash amount of Rs.1,25,000/- and gold
ornaments like chain and earing which alleged to have
been looted by the appellant. Thereafter, the
appellant and PW:10 left Ahmedabad and came to
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Vadodara and did not inform anyone as nothing being
happened. The accused had destroyed the mobile
phone and bloodstained clothes of him. The looted
ornaments had been sold by the accused to goldsmith
and sale amount was utilized for purchasing the car.
2.3 According to the prosecution case, on 03.05.2011, the
victim before leaving, informed the family that she is
going to beauty parlour and will come in a short time.
The family members till late night did not get any clue
about whereabouts the victim, as a result, the missing
complaint with Vadodara Police Station came to be
filed by the brother Jigneshbhai.
2.4 On 14.05.2011, i.e. next day of the incident, PW:1
Tashinlash Christian being a railway gang-man found
the dead body of the deceased when he was on
patrolling. He immediately informed his superior. The
Changodar Police, Ahmedabad was informed by the
railway official and on arrival, the complaint came to
be filed by PW:1, inter alia, alleging the murder of
unknown woman. The offence registered being I-
C.R.No.67 of 2011 with Changodar Police Station. The
inquest was done and the dead body was sent for
postmortem. The police did the panchnama of scene
of occurrence and took necessary samples.
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2.5 According to the prosecution case, since 13.05.2011
to 23.09.2011, neither Changodar Police Station,
Ahmedabad nor Fatehganj Police Station, Vadodara,
before whom, a missing complaint filed, had any clue
about the author of crime. In other words, the offence
was not detected till 23.09.2011. The witness PW:10
Sachinsingh Rajput was habitual offender of theft
cases and offences came to be registered against him
with Vadodara and Bharuch Police Station. He was
wanted in a theft case allegedly registered with
Fatehganj Police Station. On 23.09.2011, the
Fatehganj Police arrested him in a theft of bike. While
in police custody, PW:10 Sachinsingh Rajput disclosed
the incident of rape and murder. PW:16 PSI S.S.
Rathod, Fatehganj Police Station recorded the
statement of PW:1 wherein he disclosed that the
appellant accused committed a rape upon the victim
and thereafter, he killed the deceased by stabbing her
multiple times and looted the ornaments and cash
amount. The PW:10 Sachinsingh Rajput saw the place
of the incident voluntarily and the same had been
recorded by way of panchnama alleged to have been
drawn by PW:16 Mr.Rathod. The appellant accused
thereafter arrested on 30.09.2011 by Ahmedabad
Police. The I.O. PW:17, during the investigation,
recorded the statements of witnesses, seized and
recovered the necessary material from the goldsmith,
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to whom the accused had sold the looted ornaments,
seized the car which the accused had purchased from
the sale mount of looted ornaments, sent the seized
articles to FSL for chemical analysis and thereafter, he
filed the chargesheet against the accused appellant
for the offences punishable under Sections 302, 397,
376 and 201 of the IPC came to be filed before the
jurisdictional Magisterial Court who had committed the
case to the Sessions Court, at Ahmedabad (Rural).
3. After due framing of charge, and upon accused not
pleading guilty, the trial commenced before the
Additional Sessions Court, Ahmedabad (Rural). The
prosecution examined following witnesses and
exhibited the documents:
Oral evidence
PW 1 - Exh.5 Tashinlash Lughrani, complainant
PW 2 - Exh.7 Lucky Kaur, panch witness
PW 3 - Exh.9 Kinnar Rameshbhai Patel, medical officer
PW 4 - Exh.12 Jeetndrakumar Magubhai Solanki
PW 5 - Exh.14 Ajitsingh Kartarsingh, panch witness
PW 6 - Exh.15 Bhadursingh Udhaysingh, panch witness
PW 7 - Exh.17 Govindbhai Ishwarbhai
PW 8 - Exh.18 Tejalben Jigyeshbhai, panch witness
PW 9 - Exh.19 Anjuben Dipeshbhai Vankar
PW 10 - Exh.21 Sachinsingh Ajaysinh Rajput
PW 11 - Exh.27 Ajaysinh Bahadursinh, panch witness
PW 12 - Exh.28 Balkrishna Mohanlal
PW 13 - Exh.30 Aandubh Pratapsinh
PW 14 - Exh.31 Arvindbhai Thavrabhai, panch wtiness
PW 15 - Exh.33 Parbatsinh Narsinh, panch witness
PW 16 - Exh.37 Shenabhai Shakarabhai Rathod, panch wtiness
PW 17 - Exh.41 Nisar Muhammad Sultankhan Malik
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Documentary evidence
Exh.6 Complaint
Exh.8 Inquest Panchnama
Exh.10 Yadi of PM articles
Exh.11 PM Note
Exh.13 Discovery panchnama of place of offence
Exh.16 Panchnama of place of offence
Exh. 17 Panchnama of place of offence as told by accused
Exh.29 Bill of gold chain ordered by accused
Exh.32 List of articles
Exh.34 Panchnama of vehicle bought from the deceased money by the
accused
Exh.35 Panchnama of seizure of money paid for repair of vehicle
purchased by accused from deceased's money
Exh.36 Panchnama of place from where the weapon was recovered
Exh.38 Report of Fatehpur police to Changodar police
Exh.39 Panchnama of clothes of deceased
Exh.40 Panchnama of body of accused
Exh.43 Report of site after inspection by FSL
Exh.44 Dispatches
Exh.45 Receive receipt FSL
Exh.46 Dispatch note
Exh.47 Receive receipt FSL
Exh.48 Forwarding letter FSL for analysis report
Exh.49 FSL analysis report
Exh.50 Forwarding letter FSL to send analysis report
Exh.51 FSL analysis report
Exh.52 Serological report FSL
4. After closure of the prosecution evidence, the accused
was questioned under Section 313 of Cr.P.C. to which
he stated that PW:10 Sachin had given a false
statement and he does not know about the incident
and has nothing to do with the victim. In addition to
that, he has stated that my mother was having fight
with Sachin and keeping the said grudge, he made
false statement before the police against me.
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5. The accused appellant has not adduced any evidence
in his defence.
6. The learned Sessions Judge after hearing the parties
and upon appreciation of the evidence, came to a
conclusion that, the sole testimony of PW:10 Sachin is
wholly reliable and his statement with respect to the
act of murder inspires full confidence. On the basis of
sole testimony of PW:10 Sachin, the Trial Court
convicted the appellant accused for the act of murder
and loot and sentenced to undergo life imprisonment.
So far as offence of rape is concerned, the trial Court
giving benefit of doubt acquitted the appellant under
the charge of rape.
7. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the trial Court, the
appellant is before this Court by way of the present
appeal.
8. We have heard Mr.Pratik Barot, learned advocate
appearing for and on behalf of the appellant accused
and Mr.Aditya Jadeja, learned APP for the respondent
- State.
9. Mr. Pratik Barot, learned counsel appearing for and on
behalf of the appellant submitted that, the case of the
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prosecution rests on the sole eye witness PW.10 -
Sachin Rajput. The alleged incident of murder and
rape alleged to have taken place on 13.05.2011 and
according to say of the witness, at relevant time, he
was being a friend of the accused, had accompanied
him and had saw the murder of victim committed by
the appellant by stabbing her multiple times and
thereafter, he along with appellant-accused, by riding
on different vehicles, came from Ahmedabad to
Vadodara. The witness PW.10 is habitual offender of
theft and as many as seven offences of theft of
vehicles registered against him with the Fatehganj
Police Station, Vadodara and Bharuch. The PW.10
witness on 23.09.2011, arrested in theft cases by
Fatehganj Police Station and while he was in custody,
he disclosed the facts of the incident before PW.16 -
PSI, S.S. Rathod. In such circumstances, Mr. Barot
would urge that the witness did not disclose the facts
of incident to anyone including his family members,
nor, reported to the police and set silent for about four
months and twenty days, for which, the prosecution
has not satisfactory explanation about the said delay
in examination of the witness. Thus, the unnatural
conduct and unexplained circumstances of the witness
PW.10, the reliance placed by the trial court while
convicting the accused, in absence of any other
evidence linking the appellant to the murder of the
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deceased, is against the settled principle of law of
appreciation of evidence as the witness is not reliable
and trustworthy and it would be wholly unsafe to rely
the PW.10 to connect the accused without any
independent corroboration. He has placed reliance on
the decisions in the case of Narendra Singh Zala vs.
State of Gujarat (2023) 18 SCC 783, Abdul
Wahid vs. State of Rajasthan 2025 (3) JT 288,
Lahu Kamalkar Patil vs. State of Maharashtra
(2013) 6 SCC 417, State of Maharashtra vs.
Dinesh (2018) 15 SCC 161, Deny Bora vs. State
of Assam 2014 (14) SCC 42, State of Madhya
Pradesh vs. Balvirsingh (2025) 3 JT 221 to
contend that, in the case of a sole eye witness, the
witness has to be reliable, trustworthy, his testimony
worthy of credence and the case to be proved beyond
reasonable doubt and in case, unnatural conduct and
unexplained circumstances can be a ground for
disbelieving the witness and his testimony is to be
discarded in toto and no amount of corroboration can
be cure that defect.
10. Mr. Pratik Barot, learned counsel appearing for the
appellant has submitted that, in the facts of present
case, prosecution has failed to prove its case beyond
reasonable doubt and as such, the judgment of
conviction is liable to be set aside as the findings of
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the trial court are contrary to the evidence on record
and settled principles of criminal jurisprudence and
therefore, conviction cannot be allowed to sustain
and thus, he prayed that, there being merits in this
appeal, that may be allowed and judgment of
conviction and order of sentence, be set aside and the
appellant may be acquitted of the charges of murder,
loot and destroying the prosecution evidence.
11. Mr. Aditya Jadeja, learned APP vehemently opposed
the appeal and contended that, mere delay in
examination of witness for about 4 months, cannot in
all case, be termed fatal so far as prosecution is
concerned. The witness PW.10 has explained about
the said delay as he was scolded by the mother of the
accused and there was a threat that he will be framed
in the theft cases. The witness has also explained that
during the said period, he was at Rajkot. Thus, when
the delay is explained, the length of delay cannot be a
ground to discard the reliable and trustworthy
evidence and therefore, upon reading of the testimony
of PW.10, nothing brought on record that he was lying
untruth and falsely depose against the appellant. The
witness during the investigation, despite having no
knowledge about the geography of Ahmedabad, had
shown the place of incident to the police and other
things which clearly establish that the trial court has
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rightly acted upon the testimony of PW.10 as his
evidence is found to be cogent, credible and
trustworthy. In such circumstances, as referred to
above, Mr. Jadeja, learned APP prays that, there being
no merits in the appeal filed by the accused and same
may be dismissed.
12. At the outset, it would apposite it to advert to the
deposition of material prosecution witness 10 - Sachin
Rajput and PW.16, PSI, S.S. Rathod as well as
Investigation Officer PW17, Nishad Mohammad. The
other witnesses are family members of the deceased
and the official of Railway, Ahmedabad who have no
personal knowledge about the incident. The PM
conducted by PW.3 - Dr. Kinnar Patel, who prepared
the PM Note, evidencing the fact that, the stab injuries
found on the body of the deceased were sufficient in
ordinary course to cause the death. In the opinion of
the doctor, there were injuries on the private parts
and possibility of unnatural sex and rape, cannot be
ruled out.
13. In the instance case, as discussed above, when we
examined the testimony of PW.10, we noticed him to
have deposed that he came into contact with the
appellant-accused 6 to 7 months before the incident.
In his deposition, he has stated that, in the year of
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2011, the appellant came to him and told that there is
a girl and let us go for a ride with her at Ahmedabad.
According to version of the witness, at about 5:00 p.m.
on 13.05.2011, he, appellant and the girl left
Vadodara and all have boarded the State Transport
bus and came to Ahmedabad at Sanathal-Sarkhej
Railway Bridge. He said that, after walking on the
track, they found one dilapidated vacant room of
Railway. The appellant and the girl went inside the
room and he was standing outside and had saw that
the accused after removing her clothes, maintained
physical relations with the girl. He did not know the
name of the girl but he could identify her from
photograph. The prosecution shown him the missing
application along with the passport size photo of the
girl which the witness had identified. The witness
PW.10 had further stated that, thereafter, the
appellant and the girl came out from the room after
which the girl which she carried, given to him and 3 of
us started walking forward nearby the bridge area of
Ahmedabad. The witness has further stated that, the
appellant suddenly took out a knife and at that time,
he was standing at a little distance ahead of him and I
saw that the appellant stabbed the girl on stomach
multiple times. The appellant thereafter, took away
the cash amount, golden chain, earrings and mobile
phone from her. The witness has further stated that,
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after the incident, they came to Dumad cross roads in
different vehicles and then came back to Vadodara
and both of them went to their respective homes. The
witness has further clarified that, the weapon knife
and blood stained clothes had been thrown in
Mahisagar river by the accused. In the cross-
examination, PW.10 has stated that, in theft cases, he
had been in jail for many times and due to his
antecedents, he know the police official of Fatehganj
Police Station and also admitted that, he was in habit
to steal two wheelers and cases have been filed with
Bharuch Police Station. The witness has also admitted
the facts that, he was threatened by the mother of the
accused that, he will be framed in theft cases and
after the incident, he was at Rajkot and thereafter, on
23.09.2011, he was detained in a theft case by
Fatehganj Police Station. The witness has denied to
the suggestion that, he did not have seen the
occurrence and was not accompanied to the accused
and falsely implicate the accused. the witness has
admitted that, on 23.09.2011, he did not have
voluntarily reported to Fatehganj Police Station, but,
when he was arrested in the theft cases, he disclosed
the incident.
14. Dr. Kinnar Patel (PW-3) while conducting post-mortem
on the body of the deceased, noted that, there were
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several injuries on the private parts and possibility of
unnatural sex and rape cannot be ruled out. During
the post-mortem, he noticed the metal earrings on the
body of the deceased. According to him, the cause of
death was multiple stab injuries noted in the column
no.17 and 21 of P.M. Report and all the injuries were
sufficient in ordinary course of nature to cause death.
It is relevant to note that, in the cross-examination,
the doctor has admitted that, the Changodar Police
brought before him two accused and out of two, one
was minor and the minor accused admitted that, he
had done unnatural sex with the deceased and further
said that the murder was committed by another
accused.
15. Shanabhai Sakrabhai Rathod (PW.16) before whom, on
23.09.2011, when he was on duty as PSI with
Fatehganj Police Station, the PW.10 - sole eye witness
Sachin Rajput, disclosed about the incident and
explained the manner in which the deceased had been
murdered by the appellant. PW.16 in his testimony
stated that, on 23.09.2011, the PW.10 - Sachin Rajput
was arrested in a theft case and while he was in police
custody, he disclosed that, he had saw one murder
alleged to have been committed by the appellant and
before the murder, the girl was raped by him in a
dilapidated vacant room at Sanathal Railway Track,
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Ahmedabad. The I.O. has further stated that, on the
basis of registration of missing complaint and after
approval of the higher authority, he had gone to place
of offence at Ahmedabad along with the appellant-
accused where he had shown the place of offence
which he narrated in the panchnama in the presence
of independent witnesses and thereafter, submitted
the papers to the higher authority and accordingly,
informed to the Changodar Police Station. In the cross-
examination, the I.O. did not have explain the delay in
examination of the witness and also have not stated
that whether the witness PW.10 - Sachin during the
period of 4 months, where he had stayed and why he
did not reported the incident to anybody.
16. Investigation Officer - Nishar Mohammad (PW.17)
after receiving the information from PW.16 - Mr.
Rathod, being a Senior Officer of Changodar Police
Station, conducted the investigation of the case and
during the investigation, he arrested the appellant-
accused and on his disclosure statement in terms of
Section 27 of the Evidence Act, drew the panchnama
of place of incident at the instance of accused,
recorded the statements of the witnesses, obtained
the papers of P.M. Report and collected the necessary
evidence on the aspect of loot as after the incident,
accused sold off the looted gold ornaments to the
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goldsmith and purchased a second hand car. In such
circumstances, the I.O. found sufficient evidence for
the commission of alleged murder by the accused, as
a result, he filed the chargesheet.
17. Before adverting to the submissions, we deem
appropriate to refer certain facts which are not in
dispute.
(a) On 13.05.2011, victim aged about 23 years old,
resident of Vadodara, left her home, informing the
family members that, she is going to beauty
parlour and will come in a short time. The victim
was engaged with someone and in near future, the
marriage was going to solemnized;
(b) On 14.05.2011, at about 7:00 a.m., PW.1 -
Tashinlash Christian being a Gang-man of Railway,
Ahmedabad, when he was on duty, found a dead
body of the victim in a pool of blood nearby
railway track. He immediately informed the
Changodar Police, Ahmedabad. The offence of
murder was being registered with Changodar
Police Station against the unidentified person. The
Changodar police on the basis of offence, made an
inquest and sent the dead body to Sanand
Community Center, Ahmedabad and prepared a
panchnama of place of incident;
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(c) On 15.05.2011, the brother of the deceased filed a
missing complaint before Fatehganj Police Station,
Vadodara;
(d) On 23.09.2011, PW.10 - Sachin Rajput, aged about
16 years, was apprehended by Fatehganj Police
Station in a theft case and during the police
custody, he made a disclosure that his friend -
appellant committed a murder of one girl at
Ahmedabad and he was witness to the incident.
On the basis of his statement, PW.16 proceeded to
investigate the case and on the voluntary
statement of the witness, he along with the
witness came to the place of incident at
Ahmedabad and prepared a panchnama to the
effect that the witness had pointed out the place of
incident. The PW.16, submitted the statement of
PW.10 and copy of the panchnama to the
Changodar Police. Based on the subsequent
development alleged to have been disclosed by
PW.10, the I.O. - PW.17, proceeded to investigate
the case and after the arrest of the appellant, he
laid the chargesheet before the Jurisdictional Court
and the case was committed to the court of
sessions.
18. Question that arises for our consideration is whether
the prosecution has been able to establish the
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involvement of the appellant, in the crime in question
and the trial court was justified in convicting the
appellant on relying on the sole testimony of PW.10 -
Sachin Rajput?
19. It is settled principle of law that, in case of a sole eye-
witness, the witness has to be reliable, trustworthy,
his testimony worthy of credence and the case to be
proved beyond reasonable doubt. The Apex Court in
the case of Anil Phukan Vs. State of Asam, (1993) 3
SCC 282, has held that,
"3. So long as the single eyewitness is a
wholly reliable witness the courts have no
difficulty in basing conviction on his
testimony alone. However, where the single
eyewitness is not found to be a wholly
reliable witness, in the sense that there are
some circumstances which may show that
he could have an interest in the
prosecution, then the courts generally insist
upon some independent corroboration of
his testimony, in material particulars,
before recording conviction. It is only when
the courts find that the single eyewitness is
a wholly unreliable witness that his
testimony is discarded in toto and no
amount of corroboration can cure that
defect."
The same principle has been enunciated in Amar
Singh Vs. State (NCT of Delhi), (2020) 19 SCC 165.
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20. The Apex Court in so many cases has held that, it is
not the quantity but the quality of witnesses and
evidence that can either make or break the case of
the prosecution. It is the duty of the prosecution to
prove that the testimonies of the witnesses that it
seeks to rely upon are of sterling quality, i.e. fully
trustworthy and absolutely free from any kind of
blemish. [Prahlad v. State of M.P. (supra); Amrik
Singh v. State of Punjab, (2022) 9 SCC 402;
Pramila v. State of U.P., (2021) 12 SCC 550;
Krishan Kumar Malik v. State of Haryana, (2011)
7 SCC 130].
21. So far as delay in examination of the witness is
concerned, and in any case, the behaviour of the
witness is not found in natural course of human
behaviour, the Supreme Court, in case of Lahu
Kamlakar Patil Vs. State of Maharashtra, (2013)
6 SCC 417, after referring the cases of Gopalsingh Vs.
State of Madhya Pradesh and Alil Mollah Vs. State of
West Bengal, has held that, the witnesses to certain
crimes may run away from the scene and may also
leave the place due to fear and if there is any delay in
their examination, the testimony should not be
discarded. It is further observed that, a court has to
keep in kind that different witnesses react differently
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under different situation like some witnesses get a
shock, some become perplexed, some start wailing
and some run away from the scene and yet some who
have courage and conviction, come forward either to
lodge FIR or get themselves examined immediately.
Thus, according to Supreme Court, it differs from
individual to individual. There cannot be any
uniformity in human reactions. While the said principle
kept in mind, it also to be born on mind that the if the
conduct of the witness is so unnatural and is not
accord with acceptable human behaviour allowing of
variations, then his testimony becomes questionable
and is likely to be discarded.
22. Keeping in mind the aforesaid, we shall proceed to
scrutinize the evidence of PW-10 Sachin Rajput. In the
facts of the present case, the principal argument of
the learned counsel Mr. Pratik Barot is that, there has
been 4 to 5 months delay in examination of witness
PW.10 and immediately after the incident, he did not
report to the police, nor, disclosed to anyone and
when he was arrested in theft cases, he made a
voluntary statement that, he had seen one murder
alleged to have been committed by the appellant and
thus, in absence of any satisfactory explanation, the
testimony of the witness cannot be said to be wholly
reliable and his testimony should be discredited. We
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found substance in the submission advanced by
learned counsel appearing for the appellant. It is
evident that, the PW.10 was having criminal history as
there were 7 to 10 theft cases alleged to have been
registered against him at Fatehganj Police Station,
Vadodara as well as Police Station at Bharuch. At
relevant time, he was aged about 16 years old. It is his
admission that, he knew the police officials of
Fatehganj Police Station. The offence registered with
Changodar Police Station on 14.05.2011 and the
statement of PW.10 recorded on 23.09.2011 and
during the said period, whether he was in Vadodara,
Bharuch or Rajkot, that has not been properly
explained by the prosecution. He sat quiet for almost
4 months and more. The conduct of the witness is also
require to be noted as at one hand, he said the cloth
beg carried by the victim was given to him and on the
other hand, he said the cloth beg which was with him,
had been thrown into Mahisagar River. According to
prosecution case, after the incident, the appellant
looted cash amount of Rs.1,25,000/-, golden chain and
earrings of the victim. During the investigation,
neither the weapon, nor the looted ornaments were
being recovered from the appellant. The goldsmith did
not have any idea about it. In such circumstances, the
conduct of the witness is creating a doubt about his
version on the aspect of incident and subsequent act
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of loot. The P.M. Doctor - PW.3 Mr. Patel referred the
possible involvement of two accused as the police
brought before him two accused and out of two, one
was minor and other one was adult. On this aspect,
prosecution is silent and I.O. PW.17, unable to throw
light about the person who was minor. In such
circumstances, after close scrutiny of PW.10, we found
the behaviour of the witness is contrary to normal
human behaviour as not a single word being deposed
by him explaining his silence in disclosing the incident
to the police as well as his family members, or anyone
and therefore, in this backdrop of his unnatural
conduct and unexplained circumstances, does not
inspire confidence and deserves to be ignored. We
may refer the case of Kaliram Vs. State of Himachal
Pradesh (1973) 2 SCC 808. In the case before the
Supreme Court, the witness became aware of the
murder and the accused's involvement. Yet, he
remained silent for over two months before making
any disclosure or statement. The Supreme Court held
that, if a witness professes to know about gravely
incriminating circumstance.... and keep silence for
about two months.... in absence of any cogent
reasons, his statement is bound to loose most of its
value. There is nothing on record that, the PW-10 was
under any fear or shock when he came to Vadodara. It
is not alleged that, there was tremendous pressure on
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the witness by the appellant. The witness was habitual
offender and was aware about the registration of the
FIR, police power and on the contrary, according to his
statement, he knew the officials of the Fatehgunj
Police Station, Vadodara. In such circumstances, the
silence of witness of 5 months in the peculiar facts
and circumstances of the present case, the witness
cannot be treated as so trustworthy and
unimpeachable to record a conviction against the
appellant. The learned trial Court observed that,
despite having limited knowledge of geography of
Ahmedabad, the witness had shown the place of
incident to the police. However, fact remains that after
registration of the offence against the unidentified
accused with Changodar Police Station, Ahmedabad,
the place of incident having been disclosed and noted
in the panchnama and therefore, same cannot be a
discovery of distinct facts at the behest of the
accused. Even after the arrest of the appellant,
nothing being found and recovered from him with
respect to weapon and looted articles. The family
members of the victim had no knowledge about the
cash amount and golden ornaments carried by the
victim. So far, earings are concerned, the Dr. PW-3
while conducting post-mortem, noted that, the victim
was having metal earing in both the ears. In such
circumstances, the theory of loot and destroying the
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evidence, as believed by the trial Court, are contrary
to the evidence on record and having been recorded
on the basis of surmises and conjunctures. Thus, we
are not agree with the findings recorded by the trial
Court with regard to reliability of PW-10 and in
absence of corroboration to his evidence to connect
the appellant with the murder, we have no hesitation
to hold that the case against the appellant has not
been proved beyond a reasonable doubt.
23. In the result, the appeal is allowed. The judgment of
conviction and order of sentence dated 20.03.2014
recorded by 2nd Additional Sessions Judge, Ahmedabad
(Rural) in Sessions Case No. 58 of 2012 is set aside.
Appellant be set at liberty forthwith unless his
detention is required in any other offence. R&P be
sent forthwith to the concerned trial Court.
24. In view of the passed in main Criminal Appeal, no
order is Criminal Misc. Application No. 2 of 2025 and is
disposed of.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
P.S. JOSHI
