Gujarat High Court
State Of Gujarat vs Babuji Ramtuji Thakore on 6 June, 2025
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 695 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
BABUJI RAMTUJI THAKORE & ORS.
==========================================================
Appearance:
MR HARDIK SONI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,5
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,4
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 06/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The present appeal is preferred by the State
under section 378(1)(3) of the Code of Criminal Procedure
1973 (for short "the CrPC") against the judgment and order
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
dated 31.3.1999 in Sessions Case No.47 of 1997 passed by
the learned Additional Sessions Judge, Ahmedabad (Rural)
at Gandhinagar acquitting the accused persons for the
offences punishable under sections 302, 120-B read with
section 34 of the Indian Penal Code 1860 and Section 135 of
the Bombay Police Act.
2. The facts of the present case in nutshell are as
under :
2.1 It is the case of the prosecution that deceased
Bhalaji - brother of the complainant along with his children
was residing besides the complainant at Kolvada of
Gandhinagar Taluka. It is alleged that accused No.1 -
Babuji Thakor was calling deceased Bhalaji time and again
for doing his household work and was also having made
him to drink liquor. It is alleged that as Bhalaji was going
at the place of accused No.1 frequently, he was having
sexual relations with accused No.2 - Sakuben @ Shakriben,
wife of accused No.1. It is alleged that accused No.2 was
visiting the place of deceased Bhalaji frequently. On
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
23.5.1997 at about 7.00 hours in the night, the
complainant and Bhavna - niece of Bhalaji were seen at
Balaji's residence. When Bhavnaben was going at the Galla
(pan shop) through faliya, at that time, accused No.2 -
Sakuben met Bhavna near the house of deceased Bhalaji
and asked Bhavnaben "Is your uncle Bhalaji is at the
residence, I have a work ?" Therefore, Bhavna said "yes"
and told to go at home. Thereafter, on the next day, one
Ranchhodji informed the complainant Kalaji at about 7.00
hours in the morning that the dead body is lying near the
pond of village. Therefore, the complainant went with him
at the said place and saw the dead body of Bhalaji. There
were injuries on the face with sharp edged weapon and cut
the portion from head till upper side. Bhavna told Kalaji
that she had talk with accused No.2. It is alleged that
deceased Bhalaji and accused No.2 Shakriben went outside
together and have not returned home. Therefore, the
complainant inquired about accused Nos.1 and 2 but they
were not found at their residence. The accused Nos.3, 4 and
5 - brothers of accused No.1 were also not found at their
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
residence. The complainant came to know that the accused
murdered Bhalaji and ran away on previous night in
rickshaw. The accused first went to hire the rickshaw of
Shakraji Chaturji but as his rickshaw was not available, the
accused ran away in another rickshaw. Thereafter, the
complainant informed this incident to the Police Sub
Inspector, Pethapur and accordingly, the offence was
registered as I - CR No.88 of 1997 before the Pethapur
Police Station.
2.2 After completion of the investigation, the
chargesheet was presented against the accused persons in
the court of learned Magistrate. As the case was exclusively
triable by the learned Sessions Court, the learned
Magistrate committed the said criminal case to the learned
Sessions Court.
2.3 The charge was famed against the accused at
Exh.8 and read over to the accused. The accused pleaded
not guilty and claimed to be tried.
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
2.4 In order to bring home the guilt, the prosecution
has examined various witnesses and also produced
documentary evidences.
2.5 At the end of the trial, after recording the
statements 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, acquitting the accused persons from
the charges levelled against them.
3. Being aggrieved by the same, the appellant State
has preferred the aforesaid Criminal Appeal before this
Court.
4. Learned Additional Public Prosecutor Mr.Hardik
Soni has mainly contended as follows :
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
4.1 That the judgement and order of acquittal passed
by the learned trial Judge is contrary to law, evidence on
record and the facts of the present case.
4.2 That the learned trial Court has not properly
appreciated the facts of the prosecution case, more
particularly, the fact that on 23.5.1997 at about 7.00 pm
Bhalaji was last seen together with accused No.2 -
Shakriben and thereafter did not return and on inquiry by
the complainant at the residence of accused Nos.1 and 2,
they were not found present and thereafter, the complainant
went to the house of respondent Nos.3, 4 and 5 and they
were not present at their respective houses. Thus, it came
to the knowledge of the complainant that after committing
murder of deceased Bhalaji, all the accused persons had
run away from their respective houses.
4.3 That learned trial Judge has not properly
appreciated the fact that accused Jasuji and Babuji had
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
produced muddamal weapon for committing crime which is
duly proved from the evidence of all the panch witnesses.
4.4 That the learned trial Judge has miserably failed
in appreciating that blood group of the deceased was found
on the cloth of accused Jashuji.
4.5 That the muddamal dhoka was recovered at the
instance of accused Jashuji, whereas accused Babuji
produced original danti in committing offence. However,
this aspect has not been properly appreciated by the
learned trial Judge.
4.6 Thus, it is argued by learned Additional Public
Prosecutor Mr.Hardik Soni that reasons given by the
learned trial Court while acquitting the accused are
improper, perverse and unwarranted in the facts of the
present case and there is misreading of oral as well as
documentary evidences which require interference at the
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
hands of this Court and requested to allow the present
appeal.
5. At this stage, it would be fruitful to refer to the
decision of the Honourable Apex Court in the case of
Constable 907 Surendra Singh and another Vs State of
Uttarakhand, reported in (2025) 2 SCR 239 wherein the
Honourable Apex Court in paragraphs 11 and 12 has
observed thus :
"11. Recently, in the case of Babu Sahebagouda
Rudragoudar and others V. State of Karnataka, a
Bench of this Court to which one of us was a Member (
B. R. Gavai, J.) had an occasion to consider the legal
position with regard to the scope of interference in an
appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the
principles laid down by this Court governing the
scope of interference by the High Court in an
appeal filed by the State for challenging acquittal
of the accused recorded by the trial court.
39. This Court in Rajesh Prasad V. State of
Bihar [ Rajesh Prasad V. State of Bihar (2022) 3
SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated
the legal position covering the field after
considering various earlier judgments and held as
below : ( SCC pp. 482-83, para 29)
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
"29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court while
dealing with an appeal against an order of
acquittal in the following words: [ Chandrappa V.
State of Karnataka, (2007) 4 SCC 415 : (2007) 2
SCC (Cri) 325 ], SCC p. 432, para 42)
'42. From the above decisions, in our
considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against
an order of acquittal emerge:
(1) An appeal court has full power to
review, reappreciate and reconsider the
evidence upon which the order of
acquittal is founded.
(2) The Criminal Procedure Code, 1973
puts no limitation, restriction or
condition on exercise of such power
and an appellate court on the evidence
before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very
strong circumstances", "distorted
conclusions" , "glaring mistakes" , etc.
are not intended to curtail extensive
powers of an appellate court in an
appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise
the reluctance of an appellate court to
interfere with acquittal than to curtail
the power of the court to review the
evidence and to come to its own
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
conclusion.
(4) An appellate court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour
of the accused. Firstly, the
presumption of innocence is available
to him under the fundamental principle
of criminal jurisprudence that every
person shall be presumed to be
innocent unless he is proved guilty by a
competent court of law. Secondly, the
accused having secured his acquittal,
the presumption of his innocence is
further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusion are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal
recorded by the trial court.' "
40. Further, in H.D. Sundra V. State of
Karnataka [ H. D. Sundra V. State of Karnataka
(2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748 ] this
Court summarised the principles governing the
exercise of appellate jurisdiction while dealing
with an appeal against acquittal under Section
378 CrPC as follows : ( SCC p. 584, para 8 )
"8. ... 8.1. The acquittal of the accused
further strengthens the presumption of
innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
8.3. The appellate court, while deciding an
appeal against acquittal, after reappreciating
the evidence, is required to consider whether
the view taken by the trial court is a possible
view which could have been taken on the
basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the
scope of interference by an appellate court for
reversing the judgment of acquittal recorded by
the trial court in favour of the accused has to be
exercised within the four corners of the following
principles:
41.1. That the judgment of acquittal suffers form
patent perversity;
41.2. That the same is based on a
misreading/omission to consider material
evidence on record; and
41.3. That no two reasonable views are possible
and only the view consistent with the guilt of the
accused is possible from the evidence available on
record."
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
12. It could thus be seen that it is a settled legal
position that the interference with the finding of
acquittal recorded by the learned trial judge would be
warranted by the High Court only if the judgment of
acquittal suffers from patent perversity; that the same
is based on a misreading/omission to consider
material evidence on record; and that no two
reasonable views are possible and only the view
consistent with the guilt of the accused is possible
from the evidence available on record."
6. Thus, on the aforestated legal prepositions, this
Court has to test on the anvil of the evidence on the record
as to whether the acquittal suffers from any patent
perversity or that the same is based on misreading or on an
omission to consider material evidence on record and that
no two reasonable views are possible and only view
consistent with the guilt of the accused is possible on the
evidence on record.
7. Thus, on the aforesaid settled principles of law,
this Court has now to reappreciate the oral as well as
documentary evidences placed on record by the
prosecution. The case of the prosecution is based on the
theory of the last seen together and also on circumstantial
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
evidences. In this regard, in the case of Sharad
Birdhichand Sarda Vs State of Maharashtra, reported in
(1984) 4 SCC 116, the Honourable Apex Court has set down
the golden rule in the case based on circumstantial
evidences as follows :
"(1.) 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;
(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."
8. It is also profitable to refer to the judgment
reported in 2025 INSC 751 in the case of Padman Bibhar Vs
State of Odisha wherein it is observed thus :
"19. The present is a case where except for the
evidence of 'last seen together' there is no other
incriminating material against the appellant.
20. This Court in Kanhaiya Lal vs. State of
Rajasthan has held that evidence on 'last seen
together' is a weak piece of evidence and
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
conviction only on the basis of 'last seen together'
without there being any other corroborative
evidence against the accused, is not sufficient to
convict the accused for an offence under Section
302 IPC. The following passage from the
judgment in paras 12 and 15 can be profitably
referred:
12. The circumstance of last seen together
does not by itself and necessarily lead to the
inference that it was the accused who
committed the crime. There must be
something more establishing connectivity
between the accused and the crime. Mere
non-explanation on the part of the
appellant, in our considered opinion, by
itself cannot lead to proof of guilt against the
appellant.
15. The theory of last seen the appellant
having gone with the deceased in the
manner noticed hereinbefore, is the singular
piece of circumstantial evidence available
against him. The conviction of the appellant
cannot be maintained merely on suspicion,
however strong it may be, or on his conduct.
These facts assume further importance on
account of absence of proof of motive
particularly when it is proved that there was
cordial relationship between the accused
and the deceased for a long time. The fact
situation bears great similarity to that in
Madho Singh v. State of Rajasthan, (2010)
15 SCC 588"
21. Similarly, this Court in Rambraksh @ Jalim
vs. State of Chhattisgarh has reiterated above
legal position in the following words in paras 12
and 13:
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
"12. It is trite law that a conviction cannot
be recorded against the accused merely on
the ground that the accused was last seen
with the deceased. In other words, a
conviction cannot be based on the only
circumstance of last seen together.
Normally, last seen theory comes into play
where the time gap, between the point of
time when the accused and the deceased
were seen last alive and when the deceased
is found dead, is so small that possibility of
any person other than the accused being the
perpetrator of the crime becomes
impossible. To record a conviction, the last
seen together itself would not be sufficient
and the prosecution has to complete the
chain of circumstances to bring home the
guilt of the accused.
13. In a similar fact situation this Court in
Krishnan v. State of T.N. (2014) 12 SCC 279
held as follows: (SCC pp. 284-85, paras 21-
24)
"21. The conviction cannot be based only on
circumstance of last seen together with the
deceased. In Arjun Marik v. State of Bihar
(1994) Supp (2) SCC 372 this Court held as
follows: (SCC p. 385, para 31)
'31. Thus the evidence that the
appellant had gone to Sitaram in the
evening of 19-7-1985 and had stayed
in the night at the house of deceased
Sitaram is very shaky and
inconclusive. Even if it is accepted that
they were there it would at best
amount to be the evidence of the
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
appellants having been seen last
together with the deceased. But it is
settled law that the only circumstance
of last seen will not complete the chain
of circumstances to record the finding
that it is consistent only with the
hypothesis of the guilt of the accused
and, therefore, no conviction on that
basis alone can be founded.'
22. This Court in Bodhraj v. State of J&K,
(2002) 8 SCC 45 held that: (SCC p. 63, para
31)
31. The last seen theory comes into
play where the time gap between the
point of time when the accused and the
deceased were last seen alive and when
the deceased is found dead is so small
that possibility of any person other
than the accused being the author of
the crime becomes impossible.'
It will be hazardous to come to a conclusion of
guilt in cases where there is no other positive
evidence to conclude that the accused and the
deceased were last seen together.
23. There is unexplained delay of six days in
lodging the FIR. As per prosecution story the
deceased Manikandan was last seen on 4-4-2004
at Vadakkumelur Village during Panguni Uthiram
Festival at Mariyamman Temple. The body of the
deceased was taken from the borewell by the fire
service personnel after more than seven days.
There is no other positive material on record to
show that the deceased was last seen together
with the accused and in the intervening period of
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
seven days there was nobody in contact with the
deceased.
24. In Jaswant Gir v. State of Punjab, (2005) 12
SCC 438, this Court held that in the absence of
any other links in the chain of circumstantial
evidence, the appellant cannot be convicted solely
on the basis of "last seen together" even if version
of the prosecution witness in this regard is
believed."
9. At this juncture, it is also required to be noted
that present case against original accused Nos.1 and 5
stand abated in view of the oral order dated 5.6.2024 based
on the report received from Pethapur Police Station dated
5.6.2024. Hence, the present appeal is required to be
considered qua respondent Nos.2 to 5.
10. On perusal of the deposition of Kalaji Pratapji
Thakor at Exh.15 who is complainant came to know
regarding illicit relationship between deceased Bhalaji and
accused No.2 Shakriben. However, this witness has no
personal knowledge with regard to illicit relationship
between deceased Bhalaji and accused No.2 Shakriben.
This witness is not an eye witness and he had seen dead
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
body of his brother Bhalaji while returning back to his
residence on the information being given by one Ranchhodji
that he has seen some dead body near mango tree. The
witness has further deposed that Bhavna had informed him
that at 7.00 O'clock in the evening accused No.2 -
Shakriben had come to call Bhalaji and he did not find
Bhalaji at his residence and was locked. The witness has
also further deposed that on asking neighbour Shakaji, he
informed that Ramtuji had come at 7.00 O'clock and asked
him to accompany him with his rickshaw.
On cross examination of this witness, he has
stated that no scuffle has taken place between Babuji,
Shakriben and Bhalaji. The witness also admitted that
when he has scolded Bhalaji for not keeping illicit relation
with Shakriben, deceased Bhalaji had informed him that he
had no illicit relationship with Shakriben. On considering
the deposition of Vechatji who brother of the deceased and
who has been examined vide Exh.17, it was informed by his
brother as well as his mother that there is illicit relationship
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
between Bhalaji and Shakriben. Thus, this witness has also
no personal knowledge with regard to illicit relationship
between deceased Bhalaji and accused No.2 Shakriben.
The witness has merely stated that Bhalaji and Shakriben
had illicit relationship, however, he has no personal
knowledge.
11. It is the case of the prosecution that accused
No.2 Shakriben and deceased Bhalaji were seen together at
about 7.00 O'clock. However, Kalaji has not seen deceased
Bhalaji and accused No.2 Shakriben together and on the
day of alleged incident, Vechatji was at Gandhinagar,
whereas Bhavna who is examined at Exh.18 has stated in
her deposition that she has seen Bhalaji at his residence at
7.00 O'clock. It is also stated by Bhavna in her deposition
that, at that time, she also met Shakriben and she asked
where is your uncle to which Bhavna replied, at his
residence. Thereafter, Bhavna went towards the shop and
Shakriben proceeded towards residence of Bhalaji and
thereafter, while she was returning from the shop, she had
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
seen Shakriben and her uncle Bhalaji together going on
towards village pond.
12. On perusal of the deposition of the Investigating
Officer at Exh.37 - Balaji Visaji Rana, it transpires that the
fact of Bhavna stating in her deposition that she had seen
Bhalaji and Shakriben together proceeding towards the
village pond is not stated in the statement before the police
and it is for the first time that she has stated before the
Court and thus, this material improvement goes to the root
of the case and such important fact which was not stated
before the police has been stated for the first time before the
Court and hence, it is not believable. Thus, the
prosecution's case of last seen together creates serious
doubt.
13. As far as discovery panchnama of alleged weapon
recovery at the instance of the accused persons is
concerned, on considering the entire deposition of panch
witness, more particularly, panch Rumalji Thakor which
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
has come on record that accused Jashuji had shown
weapon bat from Baval tree. However, as per the
panchnama, said weapon bat was found from kedona vada.
Nowhere in the entire deposition, the witness has stated
that Jashuji had informed in his presence that he wanted to
show weapon bat with which he had hit Bhalaji nor the
accused has stated as to where, he has hidden said weapon
bat used in the alleged crime. Similarly, Ramtuji has merely
stated that he wanted to show danti. Similarly, this panch
has also not stated that the accused has hidden weapon
and he wanted to show where he has kept this weapon.
Thus, entire panchnama of discovery of weapon is not in
accordance with the provisions of section 27 of the Indian
Evidence Act and cannot be relied upon, more particularly,
when it creates serious doubt and it is not in accordance
with law.
14. It is also required to be noted that as held in the
case of State of Karnataka v. Hemareddy [AIR 1981 SC
1417], wherein it is held as under:
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
"... This Court has observed in Girija Nandini Devi
V. Bigendra Nandini Choudhary (1967) 1 SCR 93:
(AIR 1967 SC 1124) that it is not the duty of the
Appellate Court on the evidence to repeat the
narration of the evidence or to reiterate the
reasons given by the trial Court expression of
general agreement with the reasons given by the
Court the decision of which is under appeal, will
ordinarily suffice."
In view of the aforesaid settled principles of law, this Court
is in agreement with the findings recorded by the learned
trial Court in the impugned judgment and order and entire
chain of circumstances is not complete so as to bring home
the guilt of the accused.
15. Under the circumstances, the appeal against the
respondents - accused fails and the same is rejected. The
impugned judgment and order dated 31.3.1999 in Sessions
Case No.47 of 1997 passed by the learned Additional
Sessions Judge, Ahmedabad (Rural) at Gandhinagar
acquitting the accused persons for the offences punishable
under sections 302, 120-B read with section 34 of the
Indian Penal Code 1860 and Section 135 of the Bombay
NEUTRAL CITATION
R/CR.A/695/1999 JUDGMENT DATED: 06/06/2025
undefined
Police Act is hereby confirmed. R & P be sent back
forthwith.
(NIRAL R. MEHTA,J)
(P. M. RAVAL, J)
H.M. PATHAN
