Gujarat High Court
Jagdishbhai Arjanbhai Gondalia Patel vs State Of Gujarat on 14 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. 1230 of 2014
With
R/CRIMINAL APPEAL NO. 553 of 2014
With
R/CRIMINAL APPEAL NO. 1231 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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JAGDISHBHAI ARJANBHAI GONDALIA PATEL & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JM PANCHAL, SR.ADVOCATE WITH MR NR KODEKAR(5020) for the
Appellant(s) No. 1,2
MR ROHAN RAVAL, 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 : 14/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The present appeals are directed against the
judgment and order of conviction dated 14.2.2014 in
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Sessions Case No.26 of 2012 passed by learned Additional
Sessions Judge, Gondal whereby the learned trial Court was
pleased to convict the appellants - accused.
2. Since the judgment and order of conviction under
challenge in all the captioned appeals is the same, the
appeals were heard analogously and are being disposed of
by this common order.
3. The case of prosecution is that PW 48 [Police
Inspector, Gondal City Police Station] received an
anonymous telephone call on 14.11.2011, at about 2050
hours, disclosing Mahant of a temple (hereinafter referred to
as "the deceased"] was creating a nuisance on Gundala
Road. The said anonymous telephone call was registered
vide Station Diary Entry No. 29 of 2011 [Ex.151]. Therefore,
PSI RL Dave [PW:46] and his subordinates proceeded
towards the scene of incident, but did not find anyone at the
temple or in the Aashram or nearby vicinity. However, soon
thereafter, they found dead body of the Mahant lying on the
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wasteland situated behind the Ashram, and therefore PSI,
Shri RL Dave [PW:46] informed about the same to the
concerned police station [Ex:154]. The PW:46 drew inquest
panchnama at Ex:29 in presence of PW:3 and PW:4 on
15.11.2011 at about 0100 at midnight. The dead body was
identified by PW:40 and thereafter it was sent for autopsy
purpose at government hospital at Gondal, and thereafter it
was sent to Rajkot. Upon the autopsy, the medical officer-
PW:45 primarily came to conclusion that the Mahant died of
injuries sustained all over the body and head with blunt
substance. It is the case of prosecution that during the
course of investigation, two witnesses namely Devang @
Pintoo Maheshbhai Bhojani and Bhavesh Madhubhai
Bhojani [PW:33-34} appeared before the Investigating Officer
and got their statements recorded. Allegedly both these
witnesses declared before the Investigating Officer that they
had video graphed and photographed the entire incident
which led to death of the Mahant. They allegedly produced
video cassette of the CD and three cameras in which the
entire incident was allegedly recorded under panchnama-
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Ex:35-97. When the investigating officer saw the CD, the
appellants were allegedly identified. It is also alleged that
statements of several witnesses were recorded at [Exh:158-
161] under S.164 of CrPC by the learned Magistrate who
was examined as one of the witnesses during trial as PW:47.
It is also case of prosecution that during the course of
investigation, they had drawn panchnama [Ex:44] of the
ashram where the Mahant used to live, and found photo
copies of application dated 14.11.2011 purported to have
been prepared by the deceased Mahant, disclosing that
several persons, excluding the accused appellants were
likely to assault the deceased Mahant.
4. On the basis of the aforesaid, the appellants were
arrested and at the end of the investigation, charge-sheet
was submitted before the Court of competent jurisdiction.
However, the case being exclusively triable by the Court of
Sessions, was committed to the learned Additional Sessions
Court where it came to be numbered as Sessions Case No.
26 of 2012. The learned trial Court framed charge against
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the accused persons. On the accused pleading not guilty,
the prosecution examined 50 witnesses and produced 45
documents to prove the case of prosecution. At the end of
recording of oral evidence, the learned trial Court was
pleased to record further statements as all accused persons
by virtue of provisions of Section 313 of the Code of
Criminal Procedure, 1973. The accused appellants again
pleaded false implication. After hearing the parties through
their advocates, the learned trial Court has been pleased to
hold all accused guilty of offence punishable under sections
302 read with 34 Of the Indian Penal Code and also for the
offence punishable under Section 143, 147, 148 and 149 of
the Indian Penal Code, 1860.
5. Learned senior advocate Mr.J.M.Panchal along
with learned advocate Mr.N.R.Kodekar appearing for the
appellants - accused would submit that despite all these
witnesses having been turned hostile and having not
supported the case of the prosecution, learned trial Judge
has convicted the appellants - original accused persons
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based on deposition of learned Judicial Magistrate, First
Class who had recorded the statements under section 164
of CrPC. However, it is argued that statements recorded by
learned Magistrate have been resiled by the witnesses before
the learned trial Court coupled with the fact that statements
are stereo-typed and not read over to the makers of the
statements and also coupled with the fact that due care and
caution which ought to have been taken while recording of
statements of witnesses under section 164 of CrPC is not
followed in its true spirit and creates serious doubt and the
same can be discarded.
5.1 That none of the witnesses have supported the
case of the prosecution and in such circumstances relied
upon the photographs and CD without there being any
substantive piece of evidence, more particularly, section 65-
B of the Indian Evidence Act makes the judgment under
challenge palpable wrong on the face of the record and there
can be no justification whatsoever for convicting the present
accused persons.
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5.2 That even otherwise, the character and conduct
of the deceased (Mahant) would show that the deceased was
having enmity with many persons and many persons might
have motive against the deceased which would be evident
from the number of FIRs placed on record. In support of
their submissions, learned advocates have relied upon the
following decisions.
Sr.No. Citation Party name Particulars
1 (2022) 7 SCC 581 Ravinder Singh Alias Kaku Vs State of Failure to produce 65-B
Punjab certificate.
2 (2014) 10 SCC 473 Anvar P.V. Vs P.K.Basheer & Ors. Failure to produce 65-B
certificate.
3 (2020) 7 SCC 722 Spmasundaram alias Somu Vs State S.164 statement is not
substantive evidence
4 (2010) 6 SCC 736 Baij Nath Sah Vs State of Bihar S.164 statement is not
substantive evidence
5 (1972) 3 SCC 280 Ram Kishan Singh Vs Harmit Kaur @ S.164 statement is not
Another substantive evidence
6. Per Contra, learned APP Mr.Rohan Raval would
submit that when the prosecution has proved its case
beyond reasonable doubt, more particularly, by examining
learned Judicial Magistrate who has recorded the
statements under section 164 of CrPC, the factum of
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witnesses resiling from their statements before the learned
Magistrate would be of no consequences coupled with the
fact that there are recovery of photos, CD and video
recording CD which are exhibited and proved in accordance
with law and that during the test identification parade also,
the accused were identified and thus test identification
parade having been conducted in fair and transparent
manner, learned trial Court was justified in convicting the
present appellants, more particularly, when the deceased
had also given the application naming two of the accused
persons who were harassing him just prior to the death and
under the circumstances, learned APP has argued to reject
the present appeals.
7. Heard learned advocates for the respective parties
and perused the impugned judgment and order. We have
also gone through the depositions of all the witnesses.
8. At the outset, it is required to be noted that
except PW 31 - Rameshbhai Mohanbhai Bhuva who knows
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accused No.3 has been examined vide Exh.87. PW 39 -
Kanaiyadas Guru Dayaramji has been examined vide
Exh.108. PW 40 - Tulsidas Guru Nrutyagopaldas Bapu has
been examined vide Exh.109. PW 42 - Ravjibhai Devabhai
Davera has been examined vide Exh.112 and PW 44 -
Sureshbhai Vishvanath Dave, Executive Magistrate who has
conducted test identification parade has been examined vide
Exh.127. PW 45 - Dr.Shailesh Dhanjibhai Bhuva has been
examined vide Exh.140 who has conducted postmortem. PW
46 - Rameshchandra Laljibhai Dave has been examined
vide Exh.149, PW 48 - Vishnudan Jasubhai Gadhvi has
been examined vide Exh.197 and Arshad Aiyub Yakubkhan
Sarvani has been examined vide Exh.197 who are Police
Officers, none of the other witnesses have supported the
case of the prosecution. It is required to be noted that vide
Exh.155 - PW 47 Dipenbhai Dilipbhai Buddhdev, learned
Magistrate who has recorded the statements of the
witnesses under section 164 of CrPC has been examined.
9. From the reading of the entire record of the case
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and also the impugned judgment, it transpires that learned
trial Judge has heavily relied upon the statements recorded
by PW 47 (learned Magistrate examined vide Exh.155) under
section 164 of CrPC to bring home the charge coupled with
the CD and photographs placed on record and then taking
support from the test identification parade conducted by the
Executive Magistrate - PW 44 - Sureshbhai Vishwanath
Dave and also from the depositions of the Police Officers.
10. It is also required to be noted that the statements
recorded under section 164 of CrPC by the learned
Magistrate is not the substantive piece of evidence. In this
regard, the decision in the case of Vijaya Singh and
another Vs State of Uttarakhand, reported in 2024 INSC
905 is required to be taken into consideration wherein in
paragraphs 27, 28 and 31, the Honourable Apex Court has
thus held as follows :
"27. The jurisprudence concerning a statement
under Section 164 CrPC is fairly clear. Such a
statement is not considered as a substantive
piece of evidence, as substantive oral evidence is
one which is deposed before the Court and is
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subjected to cross-examination. However, Section
157 of Indian Evidence Act, 1872 makes it clear
that a statement under Section 164 CrPC could
be used for both corroboration and contradiction.
It could be used to corroborate the testimonies of
other witnesses. In R.Shaji v. State of Kerala,
this Court discussed the two-fold objective of a
statement under Section 164 CrPC as:
"15. So far as the statement of witnesses
recorded under Section 164 is concerned,
the object is two fold; in the first place, to
deter the witness from changing his stand
by denying the contents of his previously
recorded statement, and secondly, to tide
over immunity from prosecution by the
witness under Section 164. A proposition to
the effect that if a statement of a witness
isrecorded under Section 164, his evidence
in Court should be discarded, is not at all
warranted ..."
The Court also recognized that the need for
recording the statement of a witness under
Section 164 CrPC arises when the witness
appears to be connected to the accused and is
prone to changing his version at a laterstage due
to influence. The relevant para reads thus:
"16. ... During the investigation, the Police
Officer may sometimes feel that it is
expedient to record the statement of a
witness under Section 164 Code of Criminal
Procedure. This usually happens when the
witnesses to a crime are clearly connected to
the accused, or where the accused is very
influential, owing to which the witnesses
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may be influenced ..."
28. Considering the conceptual requirement of
recording a statement before a Judicial
Magistrate during the course of investigation and
the utility thereof, as prescribed in Section 157 of
Evidence Act, it could be observed that a
statement under Section 164, although not a
substantive piece of evidence, not only meets the
test of relevancy but could also be used for the
purposes of contradiction and corroboration. A
statement recorded under Section 164 CrPC
serves a special purpose in a criminal
investigation as a greater amount of credibility is
attached to it for being recorded by a Judicial
Magistrate and not by the Investigating Officer. A
statement under Section 164 CrPC is not
subjected to the constraints attached with a
statement under Section 161 CrPC and the vigour
of Section 162 CrPC does not apply to a
statement under Section 164 CrPC. Therefore, it
must be considered on a better footing. However,
relevancy, admissibility and reliability are distinct
concepts in the realm of the law of evidence.
Thus, the weight to be attached to such a
statement (reliability thereof) is to be determined
by the Court on a case-to-case basis and the
same would depend to some extent upon whether
the witness has remained true to the statement or
has resiled from it, but it would not be a
conclusive factor. For, even if a witness has
retracted from a statement, such retraction could
be a result of manipulation and the Court has to
examine the circumstances in which the
statement was recorded, the reasons stated by
the witness for retracting from the statement etc.
Ultimately, what counts is whether the Court
believes a statement to be true, and the ultimate
test of reliability happens during the trial upon a
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calculated balancing of conflicting versions in
light of the other evidence on record.
xxxx xxxx xxxx
31. Having said so, we deem it fit to observe that
a statement under Section 164 CrPC cannot be
discarded at the drop of a hat and on a mere
statement of the witness that it was not recorded
correctly. For, a judicial satisfaction of the
Magistrate, to the effect that the statement being
recorded is the correct version of the facts stated
by the witness, forms part of every such
statement and a higher burden must be placed
upon the witness to retract from the same. To
permit retraction by a witness from a signed
statement recorded before the Magistrate on
flimsy grounds or on mere assertions would
effectively negate the difference between a
statement recorded by the police officer and that
recorded by the Judicial Magistrate. In the
present matter, there is no reasonable ground to
reject the statements recorded under Section 164
CrPC and reliance has correctly been placed upon
the said statements by the courts below."
Considering the aforesaid principle, though it is observed
that the statement under section 164 of CrPC cannot be
discarded at the drop of a hat and on a mere statement of
the witness that it was not recorded correctly and much
higher burden is placed on the witness who retracts from
the same. After perusing the record of the case, we find
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reasonable grounds to reject the statements recorded under
section 164 of CrPC merely for the following reasons.
11. The statement recorded under section 164 of
CrPC of witness - Pravinbhai Gordhanbhai Dholaria at
Exh.158, witness - Mayursinh Jitendrasinh Raijada at
Exh.159, witness - Virjibhai Somabhai Dangar at Exh.160
and witness - Girdharbhai Keshubhai Raiyani at Exh.161 if
perused, all the statements of these witnesses are verbatim
and stereotyped except barring few words. The entire
statements of all the four witnesses are verbatim and on
perusal of these statements at Exh.158 to 161, recording of
satisfaction by learned Magistrate that witnesses have
beenexplained, repercussions of recording of statements
under section 164 of CrPC and after recording of such
statements, whether such statements were read over to the
witnesses is also not reorded under these exhibits. Thus,
despite witnesses having stated that they have given the
statements before the learned Magistrate, no specific dates
have been admitted by them with regards making of such
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statements and they have resiled from their statements
recorded under section 164 of CrPC coupled with the fact
that none of the independent witnesses except as stated
hereinabove have supported the case of the prosecution. No
reliance can be placed on the statements of the witnesses
recorded under section 164 of CrPC which creates serious
doubt in the manner in which they were recorded and under
the circumstances as to how these statements were given is
not proved beyond reasonable doubt nor the cooling off
period or the factum of repercussions of the statements
under section 164 of CrPC having been explained and
recorded in such statements cannot be relied upon to
convict the accused persons. Thus, the statements though
relevant but their admissibility and reliability create serious
doubt and does not pass the test of admissibility and
reliability under the provisions of the Indian Evidence Act
and no weightage can be attached to such statements and
in light of all other evidence on record relied upon, section
164 of CrPC would be of no avail to the prosecution.
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12. As far as witnesses supporting the case of the
prosecution are concerned, the first such witness PW 31 -
Rameshbhai Mohanbhai Bhuva at Exh.87 though has not
been declared hostile, but does not support the case of the
prosecution and does not take the case of the prosecution
any further. As far as PW 39 - Kanaiyadas Guru Dayaramji
who has been examined at Exh.108 is concerned, it is only
proved to the effect that 10 to 12 days before the death of
the deceased, the deceased had talked with this witness and
stated that accused Nos.1 and 2 are harassing him and
want to snatch away the possession of the land. Thus, only
serious doubt can be said to have created and when no
specific role is attributed to any of the accused nor as he eye
witness to the incident, no reliance can be placed on such
witness. The next witness who has supported the case of
the prosecution is Tulsidas Guru Nrutyagopaldas Bapu who
has been examined at Exh.109 also does not take the case
of the prosecution any further since he only recognizes the
dead body. PW 42 - Ravjibhai Devabhai Davera who has
been examined at Exh.112 also does not take the case of the
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prosecution any further and has clearly admitted in his
cross examination that on the day of incident, he was not in
Gondal City and that he has no personal knowledge about
the incident and has no knowledge about how the deceased
has expired.
13. As far as PW 25 Ratilal Naginbhai Patel is
concerned who is examined vide Exh.69, he is Circle Officer
working at the Mamlatdar office, Gondal had received
request from Gondal City Police Station to prepare site map
of the place of incident of 18.11.2011 and the same came to
be prepared on 6.1.2012. However, merely preparing map
of place of incident would not take case of the prosecution
any further when none of the material witnesses have
supported the case of the prosecution.
14. As far as PW 26 - Dr.Jitendrabhai Jivrambhai
Joshi who has been examined at Exh.72 is concerned, he
has treated accused No.1 and before the Doctor, he had
given the history to the effect that Ramdas Bapu had
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inflicted stick injury to him near Khimori lake on
14.11.2011 at 4.00 O'clock in the evening and also found
injuries of reddish brown abrasion of 2 x 2 cm with scrap.
It is required to be noted that such admission was recorded
by the Doctor while he was in police custody and on the
basis of such statement without there being any other
substantial corroborative piece of evidence coupled with the
fact that a bar under section 26 of the Indian Evidence Act
which prevents confession by the accused while in custody
of the police to be proved against him. Under such
circumstances, no reliance can be placed on such history.
15. As far as PW 27 - Devendrabhai Tapubhai
Babariya who has been examined at Exh.80 is concerned,
the witness has deposed that it is accused No.1 i.e.
Jagdishbhai who had telephoned and called ambulance and
in the cross examination of the said witness, he has
admitted that when he reached at the place of incident, one
Sadhu was lying and was changing sides and was also
speaking and had also heard from mouth to word that Bapu
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who was expired was in drunk condition. In his
examination-in-chief also, he has stated that he has
received the call on 6.30 on 14.11.2011 from Jagabhai
Gondaliya i.e. accused No.1 and in pursuance thereof, they
had gone to Shriram Petrol Pump where one Sadhu was
lying who was not well and on reaching, his health was
improved and therefore, they came back. Thus, from the
deposition of this witness also, nothing substantial
supporting the case of the prosecution is coming on record.
16. As far as the deposition of the Executive
Magistrate who has conducted test identification parade i.e.
PW 44 - Sureshbhai Vishwanath Dave at Exh.127 is
concerned, on perusal of the deposition of this witness and
considering the same in its entirety, it transpires that the
age, appearance, height etc. of the accused persons who
were not stated and due to which dummy accused persons
who were made to sit in the test identification parade were
of neither relevant hight, colour, structure of the body and
thus mandatory provisions of conducting test identification
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parade having not followed. Also considering the fact that
test identification parade is merely for the purpose of
identification of the accused and is not substantial evidence
but only corroborative evidence and hence mere
identification in test identification parade cannot form the
substantial evidence for conviction in absence of
corroborative to the identification. Even otherwise, it was
onus on the prosecution to establish that test identification
was held in accordance with law.
17. As far as the death of the deceased being
homicidal in nature is concerned, though defence lawyer
has examined the Doctor at length, but we have no reason
to discard the evidence that the death of the deceased was
because of multiple injuries sustained by the deceased on
his body and thus the death of the deceased was due to
homicidal cannot be disputed.
18. As far as the deposition of PW 46 -
Rameshchandra Laljibhai Dave who has been examined at
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Exh.149, PW 48 - Vishnudan Jasubhai Gadhvi - Police
Inspector and Investigating Officer who has been examined
at Eh.166 and PW 49 - Arshad Aiyub Yakubkhan Sarvani -
incharge Police Inspector when Vishnudan Jasubhai Gadhvi
was on leave who has been examined at Exh.197 have been
subjected to lengthy cross examination but the fact remains
that they are formal witnesses and that none of them have
deposed the contents of the panchnamas to prove various
panchnamas recorded during the investigation and under
the circumstances, it cannot be said that despite the
panchas have turned hostile, panchnamas have been
proved in accordance with law.
19. As far as recovery of camera and print out of
photographs are concerned, the fact remains that none of
the witnesses from whom such camera was recovered have
supported the case of the prosecution nor they have been
shown the camera which were used in taking photographs
and/or CD and they have turned hostile coupled with the
fact that no certificate under section 65-B of the Indian
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Evidence Act is placed on record and hence no reliance can
be placed, more particularly, in view of the decision in the
case of Arjun Panditrao Khotkar Vs Kailash Kushanrao
Gorantyal and others, reported in (2020) 7 SCC 1 wherein
it is held that certificate required under section 65-B is a
condition precedent to the admissibility of secondary
evidence by way of electronic evidence. It was further held
that oral evidence in place of such certificate cannot
sufficient as section 65-B(4) is mandatory requirement of
law and clearly states that secondary evidence is admissible
only if laid in the manner stated and not otherwise.
20. The certificate under section 65-B(4) would be
unnecessary if the original document itself is produced and
this can be done by the owner of the laptop computer,
computer tablet or even a mobile phone by stepping into the
witness box and proving that the device concerned on which
the original information is first stored is owned and/or
operated by him. No such exercise has been undertaken
while exhibiting the document, more particularly, CD or
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photographs coupled with the fact that the person alleged to
have taken photographs, recorded video and alleged
interview after the death are not proved in accordance with
settled principles in the aforesaid case.
21. In view of the same, reliance placed by learned
trial Court on CD as well as photographs is based on
without considering the settled principles of law. It is
required to be noted that conduct of the deceased was also
not clear of any doubt since there are various FIRs lodged
against him also and that from the depositions of
Girdharbhai and Jahidbhai Ismailbhai Bhatti, it has come
on record that it is accused No.1 who had telephoned for
calling abulance and was also found present at the scene of
offence which would generally not be a conduct of an
accused after committing a crime. Normally, a human
behaviour is to the effect that a person who has committed
a crime would try to concel himself from the offence and
would not be present at the scene of offence nor would be
telephoned to call ambulance after committing crime and
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thus, defence is able to create serioud dent in the case of
the prosecution theory.
22. Considering overall facts and circumstances of
the case as well as documentary evidences on record, we are
of the considered opinion that it cannot be said that the
prosecution has been able to prove its case beyond
reasonable doubt.
23. For the reasons stated hereinabove, the present
criminal appeals succeed and the same are allowed. At this
juncture, it would be relevant to note that appellant No.1 of
Criminal Appeal No.1231 of 2014 i.e. Shambhubhai
Gandubhai Kotadia Patel has expired pending the appeal on
8.2.2025 and photocopy of the death certificate is also
placed on record. Considering the same, Criminal Appeal
No.1231 of 2014 qua appellant No.1 - Shambhubhai
Gandubhai Kotadia Patel stands abated. The impugned
judgment and order dated 14.2.2014 in Sessions Case
No.26 of 2012 passed by learned Additional Sessions Judge,
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Gondal is quashed and set aside.
24. If the appellants - accused are in jail, they be set
at liberty if not required in any other offence. R & P be sent
back forthwith.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
H.M. PATHAN
