Gujarat High Court
Bhavsingbhai Chhotiyabhai Rathwa vs State Of Gujarat on 7 November, 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. 1737 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR.JUSTICE P. M. RAVAL Sd/-
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Approved for Reporting Yes No
No
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BHAVSINGBHAI CHHOTIYABHAI RATHWA
Versus
STATE OF GUJARAT
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Appearance:
MR I.H. SYED, SENIOR COUNSEL ASSISTED BY MR SHAAN M
MUNSHAW(10825) for the Appellant(s) No. 1
MR L.B. DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 07/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. The appellant accused Bhavsing Rathwa, has questioned the
legality and correctness of the judgment of his conviction and order
of sentence by preferring this appeal.
2. The appellant accused Bhavsing Rathwa, was prosecuted for the
offence of murder of his wife under Section 302 IPC and offence
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of causing disappearance of evidence under Section 201 of Indian
Penal Code. Vide judgment dated 03.08.2017, the Additional
Sessions Court, at Chhota Udepur, passed in Sessions Case No. 6
of 2016, the appellant Bhavsing Rathwa has been convicted and
sentenced for the offences as referred hereinabove and directed the
accused to undergo life imprisonment for the offence of murder
punishable under Section 302 and also sentenced to undergo 3
years for the offence under Section 201 of the Indian Penal Code.
3. Facts and circumstances leading to file this conviction appeal are
as follows:
3.1 The appellant accused Bhavsing Rathwa and his wife deceased
Akuben Bhavsinh being farmer, lived together at village: Bhilpur,
Dist.: Chhota Udepur. The relation of the husband and wife were
no cordial. The deceased wife made a complaint to the accused and
raised the issue about selling of buffaloes, as a result, on
28.05.2015, at about 1-00 pm, the dispute arose between the
husband and wife. The appellant herein in a sudden quarrel in the
heat of passion, hit the head of the deceased wife by axe, as a
result, due to sustaining of serious injuries, deceased succumbed to
her injuries. According to case of the prosecution, the neighbouring
persons and relatives after hearing the hue and cry, rushed to the
place of incident, where they saw the deceased lying in a pool of
blood. The appellant accused after the incident, run away and put
his mobile phone on switched off mode. The nephew of the
accused Ashok was nearby the place of incident also came at the
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place and after knowing the facts of the incident, he informed PW-
5 Ramsing Rathwa, who happened to be the brother of the accused.
The FIR came to be lodged by PW-5 before the Chhota Udepur
Police Station, which came to be registered as CR No. 69 of 2015
for the offences punishable under Section 302 Indian Penal Code.
The investigation of the case was handed over to PW-19 Rajesh
Baria. The investigation officer took visit the place of incident and
collected necessary samples for forensic science analysis and also
sent the dead body for postmortem. The IO during the
investigation, recorded the statement of the witnesses, arrested the
accused - appellant, recovered the weapon axe at the instance of
accused herein, collected the necessary blood samples, seized the
clothes of the deceased as well as accused and after due
investigation, the chargesheet was filed against the appellant. The
charge had been framed by the Additional Sessions Judge, Chhota
Udepur against the accused.
4. The prosecution in order to prove the charge, adduced the following oral
evidence :
PW 1 - Exh.11 Chetankumar Roshankumar Jain
PW 2 - Exh.14 Fakrabhai Surkabhai Rathwa, panch witness
PW 3 - Exh.16 Hathamali Yusufali Makrani, panch witness
PW 4 - Exh.19 Faturbhai Khaparbhai Rathwa, panch witness
PW 5 - Exh.20 Ramsinghbhai Chhotiyabhai Rathwa
PW 6 - Exh.22 Ishwarbhai Gemabhai Rathwa, panch witness
PW 7-Exh.23 Mahendrabhai Amarsinghbhai Rathwa, panch witness
PW 8 - Exh.25 Pintubhai Jalubhai Rathwa
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PW 9 - Exh.26 Bawlabhai Motibhai Rathwa
PW10 -Exh.27 Ashokbhai Mansinghbhai Rathwa
PW 11-Exh.28 Vipinbhai Lalsinghbhai Rathwa
PW 12-Exh.30 Bheemabhai Maniyabhai Rathwa
PW 13-Exh.31 Arvindbhai Vechlabhai Rathwa
PW 14-Exh.32 Vechlabhai Maniyabhai Rahwane
PW 15-Exh.33 Dineshbhai Bheemabhai Rathwa
PW 16-Exh.34 Alpeshbhai Mansinghbhai Ratwane
PW 17-Exh.35 Anitaben Bhavsinghbhai Rathwa
PW 18-Exh.36 Ushaben Rangeshbhai Rathwa
PW 19-Exh.38 Rajeshbhai Shanabhai Bariya
5. The following piece of documentary evidences were adduced by the
prosecution:
Exh.12 PM Note
Exh.13 PM Yadi
Exh.15 Panchnama of place of offence
Exh.17 Discovery Panchnama
Exh.18 Panchnama of recovery of clothes of deceased
Exh.21 Complaint
Exh.23 Inquest pachnama
Exh.39 Special Report
Exh.40 Telephone Vardhi
Exh.41 Inquest Yadi
Exh.42 PM Form
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Exh.43 Acknowledgment of handling body after PM
Exh.44 Acknowledgment of handing over the body
Exh.45 Yadi for adding of Sections
Exh.46 Yadi for making map of place of offence
Exh.47 Forwarding articles notes
Exh.48 Receipt of articles by FSL
Exh.49 FSL forwarding letter
Exh.50 FSL Report
Exh.51 Serological Report
6. After closure of the prosecution evidence, statement of the accused
- appellant under Section 313 Cr.P.C came to be recorded, to
which, he stated that he has been falsely implicated in the offence
and he is innocence.
7. Though opportunity was extended, no oral evidence has been
adduced by the appellant - accused.
The Trial Court's finding:
8. After hearing the parties and upon appreciation of material
evidence, the trial Court held guilty the accused appellant for the
murder of his wife punishable under Section 302 and also
convicted him for causing disappearance of evidence punishable
under Section 201 of the Indian Penal Code. In the judgment, the
trial Court in para-21 observed and held that, after the incident, the
accused fled away from the spot and put his mobile phone on
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switched off mode and at relevant time, except husband and wife,
no one present in the house and in that view of the matter, the
accused was having special knowledge about the facts of the
incident, which he failed to explain. The trial Court with the aid of
Section 106 of the Evidence Act, drew an adverse inference of
guilt of the accused appellant and convicted and sentenced him for
the act of murder.
9. Being aggrieved with the judgment of conviction and order of
sentence, the appellant has come up with present appeal.
10. Oral Evidence adduced by the appellant :
10.1 Dr. Chetan Jain (PW-1). This witness being Medical Officer,
associated with SSG Hospital, Vadodara, conducted a postmortum
on the body of the deceased. Upon examination of the deceased, the
doctor noticed the following external injuries :
(i) sutured lacerated wound on top of head of skull at
temporal region of size 5.5 cm * 2.5 cm @ cranium deep.
It is situated 7 cms above top of left ear along sagittal
plane obliquely. The Anterior limit wound of wound is
situated 8 cms above outer end of left eyebrow. It had 5
sutures in site which were out often. The margins are
regular, contoured tissue bridges present, reddish, blood
was out on pressure.
(ii) red abrasion on middle of chest (6X1 cm)
Dr. has also noticed the following internal injuries :
(i) scalp on reflection tissue diffuse haemorrhage and
intravasation of blood present all over with conturions
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surrounding injury;
(ii) skull linear fracture 4.5 cm obliquely on temporal bone
extending as coronal suture diastase fracture of 8 cms
length on right and middle part. Fractured bone ends slow
red harmotome, meanings contoured,
(iii) extradural haematoma on right cerebral hemisphere at
fruil temporal parietal basal part, about 450 ml subdural
hemorrahage at mid partictal lobes, brain is congested
brain is congested, conferred edematus.
In the opinion of the doctor, the cause of death was shock
following head injury. In the opinion of the doctor, the head
injury could be possible with the blunt object like axe.
10.2 Fakrabhai Rathwa (PW-2), Hatamali Makrani (PW-3), Hatubhai
Rathwa (PW-4). All these witnesses were witnesses of
discovery panchnama - Exh. 17 and panchnama of seizure of
cloths etc. The witnesses have not supported to the prosecution
and they had been declared hostile and in their cross-
examination, they have not extended support to the contents of
relevant panchnama.
10.3 Ramsing Rathwa (PW-5). This witness is the younger brother of
the accused. He is not the eye-witness of the incident. The
witness was informed by his nephew Ashok Rathwa (PW-10)
about the alleged murder, allegedly committed by the appellant
accused. On the basis of input given by PW-10, the witness
Ramsinh Rathwa lodged an FIR with the Chhota Udepur Police
Station (Exh.21).
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10.4 Pintubhai Rathwa (PW-8), Bhavlabhai Rathwa (PW-9). Both
the witnesses were neighbour of the accused. According to
prosecution case, after hearing the hue and cry, being
neighbour, they rushed to the place of incident, where they saw
the accused armed with axe and the deceased (his wife) was
lying in pool of blood. Both the witnesses have not supported to
the prosecution and in the cross-examination also, they did not
have stated against the accused.
10.5 Ashok Rathwa (PW-10), Vipin Rathwa (PW-11). These
witnesses are nephew of the accused and at the time of incident,
they were working in their field, nearby the place of incident.
Both the witnesses have been declared hostile, as they did not
support to the case of the prosecution. Even in the cross-
examination, they did not have stated that the accused was
present at the place.
10.6 Bhimabhai Rathwa (PW-12), Arvind Rathwa (PW-13),
Vechalabhai Rathwa (PW-14), Dineshbhai Rathwa (PW-15),
Alpesh Rathwa (PW-16), Anitaben Rathwa (PW-17), Ushaben
Rathwa (PW-18). All these witnesses are close relatives and
family members of the accused herein. They have been declared
hostile and in the cross-examination also, nothing incriminating
material found in their evidence so far presence of the appellant
accused at the place is concerned.
10.7 Rajesh Baria (PW-19). The witness being a PI, Chhota Udepur
Police Station, was entrusted with the investigation of the case.
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He has stated in his chief-examination that, during the
investigation of the case, he took visit the place of incident and
drew the panchnama of scene of occurrence and then recorded
the statement of the witnesses and thereafter arrested the
accused - appellant. So far, recovery and discovery of weapon
axe is concerned, the witness has stated that, after arrest of the
accused, he made a statement that, he intend to discover the
weapon axe on his own volition and at his instance, the
recovery of axe was made. The witness has further stated that,
after collecting necessary medical case papers and FSL report,
the chargesheet came to be filed against the accused for the
offences as referred above. In the cross-examination, except
denial nothing substantial being asked by the defense.
11. We have heard Senior Counsel Mr. I.H. Syed assisted by Mr. Shan
Munshaw, learned counsel appearing for and on behalf of appellant
accused and Mr. L.B. Dabhi, learned Additional Public Prosecutor
for the respondent State.
12. Mr. Syed, learned senior counsel has submitted that, the trial Court
committed a serious error in holding the appellant accused guilty of
the offence of murder and causing disappearance of the evidence;
the trial Court failed to appreciate the evidence in its right
prospective; that there is no evidence to prove that the accused
caused the fatal injuries to the deceased wife, as none of the
witnesses have seen the incident; that the onus lies on the
prosecution to prove the guilt of the accused either direct or
circumstantial evidence; that the discovery of weapon as
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contemplated under Section 27 of Evidence Act, has not been
proved by the prosecution, as the contents of the panchnama being
not proved either by panchas or by the IO stating the exact words
of discovery panchnama; that the court below mainly relied on the
conduct of the accused appellant and observed that, it is for the
appellant accused to explain as to how his wife died and in absence
of any explanation, the adverse inference of guilt being drawn as
contemplated under Section 106 of the Evidence Act; that in the
present case, there is no evidence to prove that the accused at the
time of incident was present and then he ran away and put his
mobile on stitched off mode; by referring Section 106 of the
Evidence Act, it was submitted that, conviction cannot rests solely
on Section 106 of the Evidence Act, unless the prosecution
establishes foundational facts beyond all reasonable doubt; that, the
prosecution failed to prove the presence of the accused at the house
and therefore, Section 106 cannot bridge foundational gaps in
circumstantial evidence. Relying on the case of Nilesh Baburao
Gitte Vs. State of Maharashtra (2025) INSC 1191, it was
contended that when the prosecution fails to establish the co-
residence of the accused and deceased, no adverse inference can be
drawn under Section 106.
13. In such circumstances, as referred above, Mr. Syed, learned senior
counsel submitted that, the prosecution has failed to prove its case
beyond reasonable doubt against the accused by adducing cogent,
acceptable and trustworthy evidence and as such, the learned trial
Court was not justified in convicting the appellant on the basis of
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Section 106 of the Evidence Act and thus, it was prayed that, the
judgment of conviction and order of sentence is liable to be set
aside.
14. On the other hand, Mr. L.B. Dabhi, learned Additional Public
Prosecutor for the respondent State, opposed the appeal and
contended that, in the absence of any explanation by the accused as
to the presence of dead body of his wife in the house, the
presumption under Section 106 has to be drawn to connect the
appellant accused with the crime and therefore, the learned trial
Court has rightly involved Section 106 and held guilty the accused
for the offence of murder. Thus, the State Counsel submitted that,
the findings of the conviction recorded are based on the evidence
and in consonance with the settled law and therefore, it was prayed
that no error either on law as well as on facts could be said to have
been committed by the trial Court in holding the appellant guilty of
the offence of murder.
Analysis and findings :
15. We have considered the contentions raised by the respective parties
and perused the case records and findings of conviction and
sentence recorded by the trial Court.
16. In the facts of the present case, the deceased Akuben was the wife
of the appellant accused and they were resided at village : Bhilpur,
Dist.: Chhota Udepur. The incident arose on 28.05.2015 at about
1-00 pm at the place mentioned in the panchnama of place of
incident. We have closely examined the medical evidence and
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injuries mentioned in the PM report and based on these evidence,
there is no doubt with regard to homicidal death of the deceased.
The point that arises for consideration is whether the prosecution
was able to bring home the guilt of the accused beyond reasonable
doubt. It is settled principle of law that, primary duty of the
prosecution is to prove its case beyond all reasonable doubt and it
cannot be relieved of its duty by creating suspicion in the mind of
the court or by proving suspicion circumstances against the
accused because, the suspicion and conjuncture are not substitute
of proof.
17. In the present case, none of the witnesses have deposed against the
appellant accused, stating inter-alia that, at the time of incident the
accused was in the house and resided together with the deceased.
The panchas of discovery panchnama have also been turned
hostile. The investigating officer, failed to prove the contents of the
discovery panchnama. Thus, there is no acceptable and satisfactory
evidence with regard to discovery and recovery of weapon. In such
circumstances, the foundational facts about the presence of the
accused at the place of incident is not proved and established. The
learned trial Court, mainly relied on Section 106 of the Evidence
Act, and held guilty the accused holding that, the appellant accused
failed to explain as to how his wife died and his failure would lead
to draw an adverse inference against him. In our opinion, the trial
Court went wrong while holding guilty the accused on the sole basis
of Section 106 of the Evidence Act. Section 106 of the Evidence
Act says that when any fact is especially within knowledge of any
person, the burden of proving that fact is upon that person. In this
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regard, the Supreme Court in the case of Annes Vs. State of NCT,
AIR 2024 SC 2297, has observed and held that the word
'especially' means facts that are pre-eminently or exceptionally
within the knowledge of the accused. In para-36 of the judgment,
the Supreme Court, further held that, the ordinary rule that applies
to the criminal trial that the onus lies on the prosecution to prove
the guilt of the accused is not in any way modified by rule of facts
embodied in Section 106 of the Evidence Act. The reason behind is
that, Section 106 of the Evidence Act is an exception to Section
101 of the Evidence Act. Section 101 with its illustration (a) laid
down the general rule that in a criminal case, the burden of proof is
on the prosecution, and Section 106 is certainly not intended to
relieve it of that duty. On the contrary, it is designed to meet
certain exceptional cases in which it would be impossible, or at any
rate disproportionately difficult for the prosecution to establish the
facts, which are 'especially within the knowledge of the accused
and which he can prove without difficulty or inconvenience'. In
another case, (Nagendra Saha Vs. State of Bihar (2021) 10 SCC
725), the Supreme Court, while referring the earlier decision of
Sambhunath Vs. State of Ajmer AIR 1956 SC 404, observed and
held that, Section 106 of the Evidence Act to apply to those cases
where the prosecution has succeeded in establishing the facts from
which the reasonable inference can be drawn regarding the
existence of certain other facts which are within the special
knowledge of the accused. In the case governed by circumstantial
evidence, if the chain of circumstantial evidence which is required
to be established by the prosecution, is not established the failure
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of the accused to discharge the burden under Section 106, is not
relevant at all, as when the chain is not complete, falsity of the
defense is no ground to convict the accused.
18. Applying the aforesaid principles, the prosecution failed to prove
the foundational facts like presence of the accused at the shared
house and other facts with regard to causing fatal injuries to the
deceased by him, the trial Court has wrongly took shelter of
Section 106 of the Evidence Act to convict the appellant accused.
Section 106 of the Evidence Act, as interpreted by the Supreme
Court, as referred, cannot be the sole ground for convicting the
accused, unless the foundational facts for shifting the burden on the
defense is established, because, it is the prosecution to prove the
guilt of the accused beyond all reasonable doubt, then only
additional circumstances, if the same is against the appellant, can
be used by taking shelter under Section 106 of the Evidence Act.
19. Under the circumstances, we find that prosecution has not been
able to prove the guilt of the appellant beyond shade of all
reasonable doubt. Accordingly, the impugned judgment of
conviction and sentence is set aside.
20. In the result, the Criminal Appeal is allowed. The conviction and
sentence recorded against the appellant in the judgment dated
03.08.2017 in Sessions Case No.6 of 2016 on the file of Additional
Sessions Judge at Chhota Udepur for the offences punishable under
Section 302 and 201 is set aside and the accused has been acquitted
of all charges. Consequently, the appellant accused is set at liberty
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forthwith, if he is not required in any other case. Fine amount, if
any, paid by the appellant accused shall be refunded to him. The
R&P be sent to the trial Court forthwith.
Sd/-
(ILESH J. VORA,J)
Sd/-
(P. M. RAVAL, J)
TAUSIF SAIYED
