[Cites 13, Cited by 0]
Gujarat High Court
Tarjubhai Vehlabhai Naika vs State Of Gujarat on 16 April, 2026
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. 1164 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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TARJUBHAI VEHLABHAI NAIKA
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MR JAY MEHTA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 16/04/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of
conviction and sentence dated 05.05.2016 passed by the learned 3 rd
Additional Sessions Judge, Vadodara at Chhotaudepur in Sessions Case
No.55 of 2014 for the offences punishable under Section 302 of the
Indian Penal Code, whereby the appellant-accused has been sentenced
for the offence punishable under Section 302 of the IPC to undergo
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imprisonment for life with fine of Rs.5,000/-, in default, to undergo three
months SI, the appellant has preferred the present appeal under Section
374 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. The brief facts leading to the filing of the present appeal are as
under:
2.1 As per the case of the prosecution, the present appellant - accused
on 16/06/2014 at about 9:30 hours had asked the deceased as to why did
she not keep with him any relationship and why did she say no to him and
thereby got excited and inflicted a knife blow on the chest and left ear
side of the face, as also inflicted indiscriminate blows on the left hand and
thus with an intention to kill her committed her murder and thereby
committed the offence punishable under Section 302 of the Indian Penal
Code. It is also the case of the prosecution that the appellant - accused
had also given the filthy abuses to the deceased and thereby committed
offence punishable under Section 504 of the Indian Penal Code.
2.2 Accordingly, FIR being CR No.45 of 2014 came to be registered
with Changodar Police Station. The Police after investigation charge-
sheeted the accused for the aforesaid offences before the learned JMFC,
Court. However, as the said Court lacks jurisdiction to try offence under
Section 302 IPC, the case was committed to the Sessions Court. On
conclusion of evidence on the part of the prosecution, the learned
Sessions Court put various incriminating circumstances appearing in the
evidence to the respondent-accused so as to obtain explanation/answer as
provided under Section 313 of the Code. In the further statement, the
respondents-accused denied all incriminating circumstances appearing
against them as false and further stated that he is innocent and a false case
has been filed against him. After examining the evidence, witness
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testimonies and submissions from both sides, the learned Sessions Court
recorded the finding convicting the appellant-accused.
3. We have heard Mr.Yogendra Thakore, learned Advocate for the
appellant - convict and Mr.Jay Mehta learned APP for the respondent-
State and minutely examined oral and documentary evidence adduced
and produced before the learned Sessions Court concerned.
4. Learned advocate Mr.Thakore appearing for the appellant- accused
has submitted that the prosecution has failed to prove its case beyond the
reasonable doubt and therefore, learned Sessions Court has erred in
convicting the appellant - accused. He would submit that the witnesses
examined before the Court, mainly three witnesses, can be said to be
tutored witnesses and they were not present at the time of the incident as
per the evidence of Defence Witness. He would further submit that three
main witnesses who have supported the case of prosecution is son of the
accused and rest two are the sons of the complainant; however the other
brother of the complainant has not supported the case of prosecution and
therefore, the prosecution has failed to prove its case beyond reasonable
doubt.
4.1 He would submit that the prosecution has not proved the aspect of
accused having made any illicit relationship with the deceased beyond
reasonable doubt however the learned Sessions Court has not appreciated
this fact and instead made the basis thereof to prove the intention of the
appellant behind committing the murder.
4.2 It is further submitted on behalf of the appellant that PW No.10 and
11 are not mentioned as eye-witness in the FIR and not a single word is
mentioned therein and therefore this creates doubt as to veracity of the
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said witnesses and in his submission, learned Sessions Court has not
considered this fact and therefore he would submit to interfere with the
finding of the learned Sessions Court. Learned advocate for the appellant
would submit that insofar as the recovery of the alleged weapon used in
commission of the crime is concerned, the same has not been proved
beyond reasonable doubt since as per the case of prosecution, the accused
had fled away from the spot after commission of the crime and had not
returned ever. Thus, as to how and when the blood stained weapon and
clothes could be discovered from the home of the accused.
4.3 Learned advocate Mr.Thakore for the appellant - accused would
submit that considering the infirmities and contradictions in the evidence
so adduced by the prosecution, the learned Sessions Court has committed
a grave error in recording the conviction of the appellant - accused. By
making the above submissions, learned advocate for the appellant -
accused would submit to allow this appeal and to quash and set aside the
judgment and order of conviction and sentence.
5. Mr.Jay Mehta, learned APP appearing for the respondent - State
submits that the impugned order of conviction and sentence does not
require to be interfered with as the learned Sessions Court has after
thorough appreciation of evidence has come to the conclusion and
recorded the conviction of the appellant - accused on the basis of the
evidence adduced before the Court. It is further submitted that the
evidence produced on record proves the involvement of the accused in
the commission of crime in question. He has further submitted that
evidence of the witnesses examined before the Court has supported the
case of prosecution and narrated the incident as it had happened. It was
submitted that no such omission or contradiction in the evidence of the
said witnesses have come on record to discard their evidence. She has
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further submitted that the prosecution witnesses have deposed before the
Court narrating the entire chain of sequence whereby the involvement of
the accused is proved which corroborates with the scientific evidence
produced and proved by the prosecution and therefore, the judgment and
order of conviction and sentence may not be interfered with.
6. Heard Mr.Thakor, learned Advocate for the appellant - convict and
Mr.Mehta, learned APP for the respondent-State and perused the
deposition of witnesses as also documentary evidence placed on record as
well as the order passed by the learned Sessions Court.
7. At the outset, if the facts of the case on hand is examined, it would
appear that case of the prosecution is that appellant - accused had gone to
the deceased and asked her as to why did she not keep any relationship
with him and when deceased expressed her reluctance, the accused got
angry and inflicted a knife blow on her chest and on the left side ear side,
as also on the left hand of the deceased resulted into her death.
8. In background of the above facts, if the evidence adduced by the
prosecution is examined, PW No.1 -Dr.Pankhil Sureshbhai Gupta,
Medical Officer, who has been examined at Exh.7 who conducted the
postmortem on the body of the deceased. This witness has examined the
body of the deceased after following due procedure and has stated the
cause of death of the deceased was hemorrhagic shock. This witness has
deposed in his testimony that injuries caused to the deceased on chick,
neck and on the chest are sufficient to cause her death. This witness has
deposed that postmortem note was prepared by him of his own
handwriting and produced at Exh.10. This witness has also described
total eight external injuries found on the body of the deceased and those
injuries are prior to cause of the death of the deceased. Witness has been
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cross-examined by the defence; but nothing sort of any such material has
come on record to disbelieve the evidence of this witness.
9. PW No.9-Jitubhai Tarjubhai Naika, complainant, son of the
accused and husband of the deceased, is examined at Exh.23. This
witness has deposed in his testimony that he was living with his family
and by doing labour work he was earning his livelihood. Witness has
further deposed that accused is his father and since the accused was
beating his mother she was sent back to her brother's home. Witness has
deposed that prior to incident in question, the accused had tried to keep
illicit relationship with his wife but Panch of the Village People had
disposed of the matter. This witness has further deposed that incident in
question took place prior to about one year ago at about 9:30 a.m. where
he alongwith his brother and two children were working in the Vada
which is situated nearby his home and at that time his wife was in the
home and she started screaming like "beating, beating" and therefore they
went inside the home and found that his father inflicted knife blow to his
wife and as soon as they entered into the home, his father started running
and thereafter having armed with knife his father had fled away from the
spot on the motorcycle and his wife got injuries on the chest, face and
accused inflicted injuries with knife and due to the said injuries his wife
was lying on the doorstep of the house and died there. This witness has
deposed that due to screaming village people gathered and thereafter the
complaint was filed which is produced at Exh.24.
This witness has been cross-examined by the defence; however
nothing sort of any such material to discard his evidence has come on
record. This witness has denied the suggestion made by the defence that
any such dispute with regard to property had led the incident in question.
The presence of this witness at the scene of incident is natural as he was
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the husband of the deceased and witness had himself seen the accused
running away from the spot after the occurrence of incident. The
prosecution has proved from the evidence of this witness the factum of
accused was present at the scene of offence at the time of commission of
crime and running away after committing a crime.
10. PW No.10 - Rajeshbhai Jitubhai Nayka, son of the complainant,
has been examined at Exh.26. This witness has deposed in his testimony
that he was living with his parents and deceased was his mother and
accused was his grandfather. This witness has deposed in his testimony
that incident in question took place prior to one year at about 9:30 a.m.,
while they were working in the Vada and at the time of incident the
accused asked something to his mother and therefore she started
screaming and they went inside the house and found that accused had
inflicted a knife blow on the chest of his mother and while they caught
hold of the knife, accused inflicted another blow on the right side of the
ear and thereafter while they caught hold of the accused, the accused also
tried to beat them and thereafter he ran away with the knife on the
splender bike and his mother was lying at the door and died thereafter.
This witness has identified the knife shown to him used in commission of
the crime.
This witness has been cross-examined by the defence; however
nothing sort of any such material to discard his evidence has come on
record. This witness has denied the suggestion made by the defence that
his father had gone to purchase kerosene at the time of occurrence of the
incident. The presence of this witness at the scene of incident is natural
as he was the husband of the deceased and witness had himself seen the
accused running away from the spot after the occurrence of incident. The
prosecution has proved from the evidence of this witness the factum of
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accused was present at the scene of offence at the time of commission of
crime and running away after committing a crime.
11. PW 11 - Arjunbhai Jitubhai Nayka, son of the complainant has
been examined at Exh.27. This witness has deposed in his testimony that
at the time of incident, he was living with his parents, brother, uncle, aunt
and grandfather and at that time his grandmother was living at Karajvant
Village and incident took place prior to one year at about 9:30 a.m. and
while he alongwith his brother and father were working at that time his
mother was cooking and his grandfather had reached to home thereafter
screaming was started and they rushed to there where he found that his
grandfather was beating knife to his mother on the chest and chick as also
on the ear and accused had also come to beat them. The accused had run
away on the motorcycle and his mother was died at the door. Witness has
identified the knife used in commission of the crime in question.
This witness has been cross-examined by the defence; however
nothing sort of any such material to discard his evidence has come on
record. The presence of this witness at the scene of incident is natural as
he was the husband of the deceased and witness had himself seen the
accused running away from the spot after the occurrence of incident. The
prosecution has proved from the evidence of this witness the factum of
accused was present at the scene of offence at the time of commission of
crime and running away after committing a crime.
12. The argument of the learned advocate for the appellant - accused
that merely because the witnesses are the relatives of the deceased, their
evidence are not reliable and creditworthy. At this juncture, the beneficial
reference can be made to the decision in case of M. Nageswara Reddy
Versus The State of Andhra Pradesh and Others with The State of
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Andhra Pradesh Versus Kasireddy Ramakrishna Reddy and others
[2022 LiveLaw (SC) 251] where the Hon'ble Apex Court has held in
paragraph 10 thus:
"10. Having gone through the deposition of the relevant witnesses
- eye-witnesses/injured eye-witnesses, we are of the opinion that
there are no major/material contradictions in the deposition of the
eye-witnesses and injured eye-witnesses. All are consistent insofar
as accused Nos. 1 to 3 are concerned. As observed hereinabove,
PW6 has identified Accused Nos. 1 to 3. The High Court has
observed that PW1, PW3 & PW5 were planted witnesses merely on
the ground that they were all interested witnesses being relatives of
the deceased. Merely because the witnesses were the relatives of
the deceased, their evidence cannot be discarded solely on the
aforesaid ground. Therefore, in the facts and circumstances of the
case, the High Court has materially erred in discarding the
deposition/evidence of PW1, PW3, PW5 & PW6 and even PW7."
(emphasis supplied)
Thus, the aforesaid arguemnt does not find any force as the
presence of the witnesses who are relatives of the deceased at the time of
incident is natural and it is the case of prosecution that they were already
present prior to and post the incident and therefore their evidence is
reliabel piece of evidence as believed by the learned Sessions Court to
hold the conviction.
13. The next facet of argument made by learned advocate for the
appellant - accused is in regards to the conduct of the accused as in the
present case the appellant - accused had run away after the incident and
therefore, it creates doubt to believe the case of prosecution. At this
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stage, it would be apt to refer to the decision of the Hon'ble Apex Court
in case of Vivek Kalra vs. State of Rajasthan [(2014) 12 SCC 439]
whereby it has been held that any behaviour or conduct of the appellant
would be relevant if it had nexus with the offence under Section 302 of
the IPC alleged to have been committed by the accused. Relevant
observations made in paragraph 9 reads thus:
"9. It is true that PW 5 has stated that the appellant had a good
behaviour and had no bad habit. Section 8 of the Evidence Act,
1872, however, provides that the conduct of any person an offence
against whom is the subject of any proceeding, is relevant, if such
conduct influences or is influenced by any fact in issue or relevant
fact, and whether it was previous or subsequent to it. Hence, any
behaviour or conduct of the appellant would be relevant if it had
nexus with the offence under Section 302 alleged to have been
committed by him. This Court has held in Vikramjit Singh v. State
of Punjab at p. 314: (SCC para 17)
"17. Conduct of an accused must have nexus with the crime
committed. It must form part of the evidence as regards his
conduct either preceding, during or after commission of the
offence as envisaged under Section 8 of the Evidence Act."
Thus, merely because the the appellant - accused after committing
the crime in question had run away from the spot his conduct would be
relevant to believe the case of the prosecution and the learned Sessions
Court has rightly believed the said aspect.
14. Insofar as the recovery of alleged weapon used in commission of
the crime at the instance of the accused is concerned, it is admissible in
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the eye of law; but not the information that the crime was actually
committed by the said weapons. At this juncture, a beneficial reference
can be made to a decision in case of Rajendra Singh And Ors. Versus
State Of Uttaranchal Etc., 2025 Livelaw (Sc) 980 where the Hon'ble
Apex Court while dealing with such aspect has observed as under:
"31. A simple reading of all the three provisions conjointly reveals
that the first two provisions are substantive, whereas Section 27 is
in the nature of an exception. Sections 25 and 26, at one hand,
provide that no confession made to a police officer or to any
person while in custody of the police, shall be admissible against a
person accused of any offence, on the other hand, Section 27
provides an exception to the above provisions. It states that so
much of the information, received from an accused person in
custody of the police, whether in the nature of confession or
otherwise, as related distinctly to the fact thereby discovered, may
be admissible. This means that not all information disclosed by a
person in police custody is required to be proved as against the
accused person; only that part which distinctly relates to the
discovery of a fact is admissible and can be proved.
32. In Pulukuri Kottaya and Ors. vs. The King Emperor 1 , the
Privy Council while analysing the aforesaid three provisions of the
Evidence Act, held that the fact of discovery, on information
supplied by the accused is a relevant fact except in a case in which
the possession or concealment of an object constitute the gist of the
offence charged. Information supplied by a person in custody such
as "I will produce a knife concealed in the roof of my house", only
leads to the discovery of the knife concealed in the house of the
informant, but whether the knife is proved to have been used in the
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commission of an offence is another question. So if the above
information is followed by the words, "with which I stabbed A",
those words would be inadmissible since they do not relate to the
discovery of the knife from the house of the informant, but are
rather independent in nature, amounting to confession of the crime
which cannot be used against the person making it i.e. the accused,
in view of prohibition contained under Sections 25 and 26 of the
Evidence Act.
33. The aforesaid decision has recently been followed with
approval by the Division Bench of this Court in Manjunath and
Ors. vs. State of Karnataka2 wherein it has been said that only "so
much of the information" as relates distinctly to the fact thereby
discovered is admissible, and the rest of the information stands
excluded. In other words, the information leading to the recovery
of the weapons of crime is admissible, but not the information that
the crime was actually committed by the said weapons."
Thus, in the case on hand, the recovery of the weapon used in
commission of the crime, at the instance of the accused is proved by the
prosecution and believed by the learned Sessions Court.
15. In light of the above evidence re-appreciated by this Court, the
undisputed facts emerging from the record are that (i) there was an
intention on the part of the appellant - accused to kill the deceased as he
was tried to keep an illicit relationship with the deceased to which earlier
dispute was erupted which was disposed of with the intervention on the
village people (ii) in denial of keeping such relationship, the accused
went inside the house found the deceased alone and inflicted a knife blow
on the deceased which resulted into her death at the same time (iii) after
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committing the offence, the accused was seen by his own son who is
complainant and two more persons who are children of the complainant
run away from the spot having armed with knife which was ultimately
recovered at the instance of the accused by way of discovery Panchnama.
16. Thus, the entire sequence of incident is proved from the evidence
of the witnesses examined before the Court, more particularly, the cause
of incident, presence of accused at the spot and running away from the
spot after the incident is proved from the aforesaid evidence and learned
Sessions Judge has rightly believed the same while convicting the
appellant - accused.
17. Now, insofar as the non-believing of the defence witness is
concerned, the learned Sessions Court has given the reasons as to why it
was not believable as nothing has come from their evidence in support of
the accused and therefore, considering the aforesaid aspect, the argument
of the learned advocate of non-believing the defence witness would not
come to the rescue of the accused.
18. Thus, from the aforesaid discussion made in consonance with the
re-appreciation of the evidence, the factum of the events took place prior
to and post the incident as narrated by the witnesses is proved by the
prosecution and this Court does not find any infirmity as pointed out by
the learned advocate for the appellant-accused.
19. In light of the above reasons, this Court does not find any
substance in the appeal. The appeal must fails and is accordingly
dismissed while confirming the judgment and order of conviction and
sentence dated 05.05.2016 passed by the learned 3rd Additional Sessions
Judge, Vadodara at Chhotaudepur in Sessions Case No.55 of 2014.
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Records and Proceedings, if any, be remitted to the Court
concerned forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
sompura
