[Cites 12, Cited by 0]
Gujarat High Court
Thrkor Bharatji Babuji vs State Of Gujarat on 22 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. 1155 of 2018
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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THRKOR BHARATJI BABUJI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MR MANAN MEHTA, APP 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 : 22/04/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Being aggrieved and dissatisfied with the judgment and order dated
09.11.2017 passed by the learned Additional Sessions Judge, Court, Patan
in Sessions Case No.16 of 2014, whereby the appellant-appellant-accused
came to be convicted for the offences punishable under Sections 498A,
302 and 201 of IPC ("IPC" for short), the appellant - appellant-accused
has preferred present appeal.
2. The present appellant-appellant-accused has been convicted for the
offence under Section 302 of IPC to undergo imprisonment for life and
fine of Rs.1,000/-, for the offence under Section 498A of IPC to undergo
rigorous imprisonment for 3 years, and for the offence under Section 201
of IPC to undergo rigorous imprisonment for 6 months, all sentences to
run concurrently.
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3. The brief facts leading to the filing of the present appeals are as
under:
3.1. The complainant, Leraji Mavjiji Thakor, lodged a complaint on
18.11.2013 stating that his sister Ramila was married about fifteen years
ago to the appellant-accused Bharatji Babuji Thakor, resident of Bhathino
Math, Kansada Darwaja, Taluka and District Patan. After marriage, the
deceased Ramila was residing with the appellant-accused. Out of the
wedlock, they had one son. The appellant-accused was doing labour work
of colour work, while the deceased was doing odd jobs and kitchen work.
The deceased had returned to her parental home about ten times after
marriage due to disputes, but was persuaded and sent back to her
matrimonial home each time. About fifteen days prior to the incident, on
the day of Dhanteras, she had again come to the parental home after a
quarrel. She was sent back the next day with assurance that she would be
counselled after the festival. The appellant-accused was harbouring
suspicion against the deceased and was harassing her.
3.2. On 18.11.2013 at about 02:00 hours in the night, the complainant
received a phone call from his brother Vithaji informing that Ramila
("deceased" for short) had died and they should come to Patan. The
complainant, along with his family members including Vithaji, his
nephew Jamaji, Rohitji, parents and wife, reached the house of the
deceased in a Bolero car. Upon reaching, they noticed marks of ligature
around the neck of the deceased and a cut injury on the right side of her
neck. The ear stud (butti) worn on the right ear was found twisted and
lying below. The appellant-accused was not found present at the house.
The complainant suspected that the appellant-accused had throttled his
sister to death and had caused disappearance of evidence. Accordingly,
the complaint was lodged at Patan City 'A' Division Police Station.
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3.3. On the basis of the said complaint, Patan City 'A' Division Police
Station registered the offence punishable under Sections 498A, 302 and
201 of IPC against the appellant-accused and carried out investigation.
During the course of investigation, statements of relevant witnesses were
recorded, necessary panchnamas were drawn, and material evidence was
collected. Upon completion of investigation, sufficient evidence having
been found against the appellant-accused, charge-sheet came to be filed
on 23.12.2013 before the learned Chief Judicial Magistrate, Patan for the
offences punishable under Sections 498A, 302 and 201 of IPC. The case
was committed to the Sessions Court by the learned Chief Judicial
Magistrate, Patan.
3.4. Upon committal, the case was transferred to the Court of learned
Additional Sessions Judge, Patan and registered as Sessions Case No.16
of 2014. After following the procedural requirements under Section 207
of the Criminal Procedure Code ("Code" for short) and framing of
charge, to which the appellant-accused pleaded not guilty, the trial
proceeded. After recording the prosecution evidence, statement of the
appellant-accused under Section 313 of the Code was recorded, wherein
he denied the allegations and claimed to be innocent stating that he had
been married for twenty-seven years, had one son, and that no complaint
was ever filed against him nor had he caused any physical or mental
harassment to the deceased. After hearing the learned advocates for the
respective parties, the learned Sessions Court, by the impugned judgment
and order dated 09.11.2017, convicted the appellant-accused, hence the
present appeal is before us.
4. During the course of the trial, the prosecution examined witnesses
and produced documents as detailed below:
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~:: Oral Evidence ::~
P.W. Exh.
Particular (Witness)
No. No.
Mahendra alias Laalo alias Shakro Bharatji
Thakor
~:: Documentary Evidence ::~
Exh.
Sr. No. Particular (Document)
No.
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Exh.
Sr. No. Particular (Document)
No.
Panchnama of seizure of clothes of appellant-
accused
5. Panchnama of ornament on the body of deceased 30
14. Police yadi 65, 66
Receipt of discovery and handing over of
15. 68, 69
ornament
Forwarding letter to FSL regarding sending of
muddamal
5. Submissions on behalf of appellant
5.1. Learned advocate for the appellant, at the outset, submitted that the
learned Sessions Court has committed a serious error in placing
full reliance on the deposition of Leraji Mavjiji Thakor (PW-1,
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Exh.-13), who is the real brother of the deceased. It is submitted
that PW-1 is not an eyewitness to the incident, as he reached the
place only after the occurrence, and his statement that the
appellant-accused strangled the deceased with a sari or pressed her
neck with some object is based only on assumption and guess
drawn from the circumstances. The witness himself has stated that
he saw a cut on the right side of the neck of the deceased which
had turned black, and that the mangalsutra was found broken under
the bed while the earring was twisted and lying near the body. It is
further submitted that, these facts can also indicate a struggle or
some other unexpected incident and do not clearly prove the guilt
of the appellant.
5.2. It is submitted that the learned Sessions Court failed to consider the
important inconsistency in the version of PW-1 regarding the
alleged manner of assault, as on one hand he stated strangulation
by tightening a sari around the neck and on the other hand he stated
pressing the neck with some object. Such contradiction, along with
the fact that PW-1 is an interested witness being the brother of the
deceased, makes his testimony unreliable for convicting the
appellant-accused. The learned advocate also pointed out that the
depositions of Dineshji Natuji Thakor (PW-9, Exh.-34) and
Aashaben Dineshbhai Thakor (PW-10, Exh.-35), who are close
relatives of the appellant-accused, turned hostile and did not
support the prosecution, which is an important circumstance that
weakens the prosecution case. He contended that the entire
prosecution case is based only on the testimony of the relatives of
the deceased, namely Vithaji Mavjiji Thakor (PW-11, Exh.-36),
Narmadaben Rameshji Thakor (PW-8, Exh.-33), Jamaji Babuji
Thakor (PW-12, Exh.-37), Rohitji Rukhaji Thakor (PW-13, Exh.-
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39), Mavjiji Chothaji Thakor (PW-14, Exh.-40), Keshaji Shankarji
Thakor (PW-15, Exh.-42) and Mahaliben Laheraji Thakor (PW-16,
Exh.-43), all of whom reached the place after the incident, and
their statements are either hearsay or based on their personal belief
and assumption that the appellant-accused committed the offence,
and none of them witnessed the incident.
5.3. Learned advocate further submitted that the circumstances relied
upon by the learned Sessions Court, such as last seen together, the
appellant-accused running away from the house, past marital
disputes, drinking habit and suspicion, do not form a complete and
continuous chain that points only towards the guilt of the appellant
and rules out every other possible explanation consistent with his
innocence. He argued that the absence of the appellant-accused
immediately after the incident can be explained due to panic or fear
and cannot be treated as final proof of guilt. Putting the burden on
the appellant-accused to explain the injury on the neck or his
absence is against the basic legal principle that the prosecution
must prove its case beyond reasonable doubt and the appellant-
accused is not required to prove his innocence. The denial given by
the appellant in his statement under Section 313 CrPC cannot be
treated as false without clear and reliable evidence. Therefore, it is
submitted that the prosecution has failed to prove the case beyond
reasonable doubt, the chain of circumstantial evidence is
incomplete, and the impugned judgment of conviction is incorrect
and not sustainable in law, and hence the appeal may be allowed
and the appellant be acquitted by setting aside the conviction and
sentence imposed on him.
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6. Submissions on behalf of the repondent-State
6.1. Learned APP for the respondent-State submitted that the learned
Sessions Court has properly considered and appreciated the
evidence on record and has rightly concluded that the prosecution
has proved the guilt of the appellant-accused beyond reasonable
doubt. He pointed out that the deposition of Leraji Mavjiji Thakor
(PW-1, Exh.-13) clearly shows the motive, as the appellant-
accused used to doubt the character of the deceased, used to beat
her after consuming liquor, and due to such ill-treatment, the
deceased had left her matrimonial home on about 10 occasions.
PW-1 has clearly stated that on the night of the incident, when the
nephew Lalu had gone to the fair at Siddhpur, only the appellant-
accused and the deceased were present in the house, and thereafter
the deceased was found dead with a cut mark on the right side of
her neck which had turned black, with the mangalsutra broken and
the earring twisted. The appellant-accused was not found at the
house and had run away, which itself is a strong circumstance
against him.
6.2. Learned APP further submitted that the evidence of Vithaji Mavjiji
Thakor (PW-11, Exh.-36), Narmadaben Rameshji Thakor (PW-8,
Exh.-33) and other family witnesses of the complainant
consistently supports the fact that the incident took place between
11 to 11.30 p.m., when the appellant-accused and the deceased
were last seen together alone in the house. The condition of the
ornaments and the injury on the neck clearly show that the
deceased was strangulated after a quarrel. He contended that the
fact that Dineshji Natuji Thakor (PW-9, Exh.-34) and Aashaben
Dineshbhai Thakor (PW-10, Exh.-35), who are close relatives of
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the appellant-accused, turned hostile is natural and does not
weaken the prosecution case. On the contrary, the consistent
statements of the relatives of the deceased, who had no reason to
falsely implicate the appellant-accused, are reliable and
trustworthy. Learned APP argued that all the circumstances proved
by the prosecution, namely strong motive, last seen together, the
appellant-accused running away immediately after the incident, the
nature of the injuries and the destruction of evidence, when
considered together, form a complete chain which clearly points
only towards the guilt of the appellant-accused and does not
support any other possible explanation.
6.3. He submitted that the learned Sessions Court has rightly held that
the explanation given by the appellant-accused in his statement
under Section 313 CrPC is false and cannot be accepted in view of
the strong circumstantial evidence on record. The prosecution has
proved all the circumstances beyond reasonable doubt and these
clearly point towards the guilt of the appellant-accused. Therefore,
the learned APP prayed that the appeal filed by the appellant-
accused be dismissed and the judgment and order of conviction
and sentence passed by the learned Sessions Court be confirmed
completely.
7. Heard the learned advocates for the respective parties and perused
the deposition of witnesses as also documentary evidence placed on
record as well as the judgment and order passed by the learned Sessions
Court.
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ORAL EVIDENCE:
8. The deposition of Leraji Mavjiji Thakor (PW-1, Exh.-13) shows
that when he saw a cut on the neck of his sister, the deceased, he
suspected that something wrong had happened and filed a complaint
stating that his brother-in-law, the appellant-accused, had killed the
deceased, who was his wife. He further stated that the appellant-accused
used to doubt and beat the deceased, that the deceased's gold earring and
mangalsutra were found lying near the body, and that the deceased had
been killed by tightening a sari around her neck. As the brother of the
deceased, his statement indicates that the appellant-accused treated the
deceased properly only when her mother-in-law and father-in-law were
alive, after which he started drinking liquor and beating her, due to which
she went to her parental home 10 times. The deceased used to tell the
witness that the appellant-accused would beat her after drinking and
suspect her character. Immediately after the incident, the witness went to
the deceased's house and found the mangalsutra broken under the bed,
the earring twisted, the deceased lying on the bed with a cut on her neck,
and the appellant-accused missing as he had run away. It appeared that
she had been strangled.
9. In cross-examination, it is brought out that the deceased used to go
out for labour work, due to which the appellant-accused suspected her
and stopped her from going, that there was a cut on the right side of the
deceased's neck which had turned black, there were injury marks on other
parts of the body, the appellant-accused ran away after seeing the
deceased dead, the witness's nephew Lalu had gone to the fair at
Siddhpur, leaving the appellant-accused and the deceased alone at home,
and during that time the appellant-accused pressed the deceased's neck
with some object, caused her death by stopping her breathing, destroyed
the evidence, and ran away.
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10. The learned Sessions Court concluded from this that the testimony
clearly proves motive through repeated ill-treatment, suspicion due to the
deceased's labour work, the fact that the appellant-accused and the
deceased were last seen together, the appellant-accused running away,
and the nature of injuries showing strangulation.
11. The deposition of Dineshji Natuji Thakor (PW-9, Exh.-34) and
Aashaben Dineshbhai Thakor (PW-10, Exh.-35) shows that, being
members of the appellant-accused's own family, they did not support the
prosecution case and turned hostile.
12. The learned Sessions Court held that since they were relatives of
the appellant-accused, they could not be expected to support the
prosecution and therefore treated them as hostile witnesses.
13. The deposition of Vithaji Mavjiji Thakor (PW-11, Exh.-36) shows
that he received a phone call informing him that the deceased had died, he
informed his elder brother, the complainant, and when he reached the
place, he saw the deceased lying on the bed with a bed-sheet covering her
head, which when removed showed a cut mark on the right side of her
neck with the skin turned black, and the appellant-accused was not
present in the house.
14. The learned Sessions Court, relying on this testimony along with
that of Narmadaben Rameshji Thakor (PW-8, Exh.-33) and other family
witnesses, concluded that the incident took place at about 11 to 11.30
p.m. when the appellant-accused and the deceased were alone in the
house, that the mangalsutra was found broken on the floor and the earring
was twisted, that the appellant-accused was last seen with the deceased
and had then run away, and that these circumstances showed that the
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appellant-accused had strangled the deceased. The appellant-accused
immediately informed PW-8 about the same.
15. The depositions of Dineshji Natuji Thakor (PW-9, Exh.-34) and
Aashaben Dineshbhai Thakor (PW-10, Exh.-35) shows that they are
members of the appellant-accused's own family and therefore did not
support the prosecution case and turned hostile. The deposition of Vithaji
Mavjiji Thakor (PW-11, Exh.-36), Narmadaben Rameshji Thakor (PW-8,
Exh.-33), Jamaji Babuji Thakor (PW-12, Exh.-37), Rohitji Rukhaji
Thakor (PW-13, Exh.-39), Mavjiji Chothaji Thakor (PW-14, Exh.-40),
Keshaji Shankarji Thakor (PW-15, Exh.-42) and Mahaliben Laheraji
Thakor (PW-16, Exh.-43), shows that they received information about the
death of the deceased, then went to the house, saw the deceased lying on
the bed with a cut mark on the right side of her neck, found the
mangalsutra broken on the floor and the earring twisted, noticed that the
appellant-accused was not present as he had run away, and formed an
opinion that the appellant-accused had strangled the deceased after a
quarrel, while also generally stating about past marital disputes, the
appellant-accused's habit of drinking and his suspicion.
16. The learned Sessions Court held that the hostility of the appellant-
accused's relatives was natural, that the statements of the deceased's
relatives clearly showed that the appellant-accused was last seen with the
deceased at about 11 to 11.30 p.m., that he had run away immediately
after the incident, that the disturbed ornaments and the injury on the neck
supported the case of strangulation, that past cruelty was proved and that
the denial of the appellant-accused was false, and therefore found him
guilty under section 302 read with section 201 of IPC and 498A of IPC
and decided points 2 and 3 in favour of the prosecution.
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MEDICAL EVIDENCE:
17. The deposition of Dr. Jashvant Revabhai Yadav (PW-21, Exh.-49),
states that on 18.11.2013 he was working as a Medical Officer at the
General Hospital, Patan, and at about 1:30 p.m. the Police Inspector of
Patan City "A" Division Police Station brought the dead body of Ramila
ben Bharatji Babuji for post-mortem along with the inquest panchnama.
He, along with panel doctor Dr. P.K. Patel, started the post-mortem at
2:00 p.m. and completed it at 4:00 p.m. The dead body was of a female
aged about 35 years, wearing a pink blouse, cream petticoat, saffron-red
designed saree and red panty, and she was wearing ornaments including a
black thread with a yellow pendant around her neck and other metal
items. On external examination, the body was cold and stiff, with fixed
post-mortem lividity on the back, bluish discoloration of fingernails, and
3 ante-mortem injuries on the right side of the neck, namely 2
ligature/pressure marks (one measuring 13 cm × 3 cm and the other 4 cm
× 1 cm, both brown, hard, and extending from the thyroid cartilage) and 1
contusion measuring 1.5 cm × 0.5 cm. On internal examination, there was
congestion in the brain and its coverings, congestion in the trachea and
oesophagus lining, fracture of the right greater horn of the hyoid bone,
lungs were highly congested and on cutting they released blood-mixed
white froth, heart chambers were empty, stomach contained 300 ml semi-
digested food and 20 ml was found in the initial part of the small
intestine, which showed that death occurred within 6 hours of the last
meal. In his opinion, the cause of death was asphyxia due to pressure on
the neck by a soft and smooth object, as stated in column 17 of the post-
mortem note (Exh.-50), and he produced the cause of death certificate
(Exh.-51), the yadi (Exh.-52), and the post-mortem report (Exh.-53). In
cross-examination, he denied that such injuries mentioned in columns 17
and 18 could be caused if a person tied a dupatta around the neck on their
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own in the form of a noose, and he also denied issuing any false
certificate without conducting the post-mortem.
18. The learned Sessions Court accepted the deposition of Dr. Jashvant
Revabhai Yadav (PW-21, Exh.-49) as reliable and used it to conclude that
the death was homicidal and caused by strangulation with a soft and
smooth object.
19. However, after careful consideration, we are of the view that the
deposition of (PW-1, Exh.-13), although showing past disputes and a
possible motive, is not direct evidence that the appellant-accused
committed the offence. The witness is not an eyewitness to the incident,
as he came only after it had happened, and his statement that the
appellant-accused might have strangled the deceased with an object is
based on assumption and information from circumstances, not on what he
personally witnessed. The mention of a cut on the neck along with
statements about strangulation by a sari or some other object creates
inconsistency in the version, which the learned Sessions Court did not
consider. Further, the fact that the appellant-accused ran away after
finding the deceased dead cannot by itself be treated as proof of guilt, as
mere absence on the part of the appellant-accused cannot be construed as
the appellant-accused ran away, without this aspect being proved by the
prosecution, especially when the witness himself states that the
mangalsutra and earring were found disturbed, which could also suggest a
struggle or some other reason not necessarily connected only to the
appellant-accused. In the absence of any direct evidence connecting the
appellant-accused with causing the fatal injuries, we find that the learned
Sessions Court wrongly relied on this testimony to hold the appellant-
accused guilty, as it does not meet the requirement of proof beyond
reasonable doubt in criminal law, and therefore the appeal deserves to be
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allowed on this ground alone, as the evidence given by this witness does
not clearly and conclusively prove the guilt of the appellant-accused.
20. We find that the hostility of these 2 witnesses, who belong to the
appellant-accused's close family, is an important circumstance which
weakens the prosecution case rather than supporting it, as it shows that
there is no support to the prosecution from the appellant-accused's side
and the entire case depends only on the statements of the deceased's
family members, which are interested witnesses, a factor which the
learned Sessions Court failed to properly consider while drawing
conclusions against the appellant-accused.
21. It appears that all the witnesses, namely Vithaji Mavjiji Thakor
(PW-11, Exh.-36), Narmadaben Rameshji Thakor (PW-8, Exh.-33),
Jamaji Babuji Thakor (PW-12, Exh.-37), Rohitji Rukhaji Thakor (PW-13,
Exh.-39), Mavjiji Chothaji Thakor (PW-14, Exh.-40), Keshaji Shankarji
Thakor (PW-15, Exh.-42) and Mahaliben Laheraji Thakor (PW-16, Exh.-
43), are all close relatives of the complainant and therefore interested
witnesses, whose evidence is not only after the incident but is also
hearsay regarding the actual act of causing death. None of them saw the
incident, and their statements that the appellant-accused had called
Narmadaben Rameshji Thakor (PW-8, Exh.-33) or about the condition of
the body only show that the deceased was already dead when they
reached, and their personal belief that the appellant-accused strangled the
deceased cannot be treated as legal proof.
22. The statements about marital disputes, drinking habits, and
suspicion are general in nature and are not directly connected to the
incident of that night, and the fact that the appellant-accused was not
present in the house immediately after the incident cannot be termed as
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appellant-accused is responsible for the offence, in absence of any cogent
material establishing presence of the appellant-accused, as having been
seen by any witness while fleeing or leaving the place of occurrence,
immediately after alleged incident.
23. The learned Sessions Court's view that the appellant-accused had
the burden to explain who caused the injury on the neck is against the
basic principle of criminal law that the prosecution must prove the case
beyond reasonable doubt and the appellant-accused is not required to
prove his innocence. The denial given by the appellant-accused in his
statement under section 313 of the Code of Criminal Procedure, 1973
cannot be treated as false without clear evidence against him.
24. We further find that although the medical evidence is consistent,
clear, and proves that the death was due to asphyxia caused by pressure
on the neck by a soft and smooth object, with clear ante-mortem ligature
marks and fracture of the hyoid bone, the witness is not an eye-witness to
the incident and his opinion is limited only to the medical findings after
death. The deposition does not contain any direct or indirect evidence
identifying the appellant-accused as the person who caused the injuries,
nor does it mention anything about the presence or behavior of the
appellant-accused at or near the time of death. The statement in cross-
examination that such injuries cannot be caused by self-strangulation with
a dupatta only removes one possible explanation, but by itself does not
prove the guilt of the appellant-accused or place any burden on him.
Since there is no evidence from this witness connecting the appellant-
accused with the act of causing the injuries, the learned Sessions Court
made an error in treating this only medical evidence as sufficient to prove
the guilt of the appellant-accused beyond reasonable doubt. This evidence
only proves the cause and nature of death and nothing more, and
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therefore it cannot support the conviction when considered along with the
entire prosecution case.
ANALYSIS ON INVOCATION OF SECTION 106 OF THE
INDIAN EVIDENCE ACT:-
25. This Court has carefully considered the relevant legal principles
and the submissions made. The primary burden of proof under Section
101 lies on the prosecution. Section 106 can be applied only after the
basic foundational facts are first proved, expert medical evidence is only
advisory and supportive in nature and requires corroboration, and the
entire chain of circumstances must exclude every reasonable possibility
of guilt.
25.1. However, the facts of the present case clearly show that the
prosecution has failed to prove the foundational facts beyond
reasonable doubt. There were prior quarrels between the parties, as
stated in the deposition of Leraji Mavjiji Thakor (PW-1, Exh.-13),
but this witness is not an eyewitness to the incident, as he reached
the place only after the incident had occurred, and his statement
that the appellant-accused might have strangled the deceased with
an object is based on assumption and surrounding circumstances,
and not on his personal knowledge. The reference to a cut injury on
the neck along with statements about strangulation by a sari or
some other object creates inconsistency in the prosecution version.
The appellant-accused was not seen committing the act, and his act
of running away cannot by itself prove that he was exclusively
present or had special knowledge at the time of the incident.
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25.2. The statements of the close family members of the deceased, who
are interested witnesses and whose evidence is hearsay regarding
the actual act of causing death, cannot be made the basis of
conviction.
25.3. All these findings do not complete the chain of circumstances. The
alleged conduct of the appellant-accused does not show evasive
behaviour in a way that shifts any burden upon him. Section 106 of
the Evidence Act cannot properly shift the burden of explanation
onto the appellant-accused when the foundational facts are not
proved. The learned Sessions Court made an error in placing the
burden on the appellant-accused to explain the injury on the neck.
The denial given by the appellant-accused in his statement under
Section 313 of the Code of Criminal Procedure, 1973 cannot be
treated as false in the absence of clear evidence against him.
Therefore, the use of Section 106 does not help the prosecution,
and this aspect also supports the conclusion that the appeal
deserves to be allowed.
26. Therefore, the chain of circumstantial evidence relied upon by the
learned Sessions Court is not complete and does not clearly prove the
guilt of the appellant-accused, it does not rule out other reasonable
possibilities consistent with guilt of appellant-accused.
27. We find that the prosecution case is based entirely on the
statements of the deceased's close relatives, who are interested witnesses,
and their evidence is limited to what they saw after the incident and their
own assumptions about the cause of death, and not on any direct evidence
of the act, and therefore it is not sufficient in law to prove the guilt of the
appellant-accused beyond reasonable doubt.
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28. We further find that the fact that the appellant-accused was last
seen with the deceased and was not present in the house thereafter, even
when considered along with the past disputes between them, does not
form a complete and clear chain of circumstances which proves only the
guilt of the appellant-accused and rules out all other possible explanations
consistent with his innocence.
29. We are of the view that the learned Sessions Court wrongly placed
the burden on the appellant-accused to explain the injury on the neck or
his absence from the house, because in a criminal case the prosecution
must prove its case on its own evidence and the appellant-accused is not
required to prove his innocence, especially when members of his own
family have turned hostile, which weakens the prosecution case instead of
supporting it.
30. Thus, the whole case of the prosecution rests on the circumstantial
evidence, however the prosecution has also failed to place on record any
such circumstances to link the chain so as to surface the implication of
the appellant-accused in commission of the crime in question. It is
pertinent to note that even as per the case of the prosecution, in absence
of any motive, that itself is sufficient to dislodge the case of prosecution
if other proven circumstances could form a chain so complete as to
indicate that in all human probability it is appellant-accused and no one
else who committed crime yet, in a case based on circumstantial
evidence, motive plays an important part.
31. Now, reverting back to the facts of the present case, nothing sort of
any such material seems to be placed on record to indicate as to motive
behind the commission of the offence in question and therefore,
admittedly the whole case rests on the circumstantial evidence and
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considering the way in which the entire incident have been described,
followed by the investigation carried out by the IO and to convict the
appellant-accused in absence of any direct evidence though dealing with
the case based on circumstantial evidence, the important aspect which
requires to be considered are such as (i) whether circumstances relied by
prosecution have been proved beyond reasonable doubt, (ii) whether
those circumstances are of a definite tendency unerringly pointing
towards guilt of appellant-accused, (iii) whether those circumstances
taken cumulatively form a chain so far complete that there is no escape
from conclusion that within all human probability crime was committed
by appellant-accused, (iv) whether they are consistent only with
hypothesis of appellant-accused being guilty, and lastly (v) whether they
exclude every possible hypothesis except one to be proved.
32. In a case of circumstantial evidence, the chain is required to be
completed as mandated under the law so as to indicate the guilt of the
appellant-accused while discarding any other theory of the crime. If one
of the link goes missing and not proved, in view of the settled law on the
point, the conviction is required to be interfered with. At this stage, with
profit, we may refer to the decision in case of Laxman Prasad Alias
Laxman (supra) where the Hon'ble Apex Court after referring to Sharad
Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116] and
Shailendra Rajdev Pasvan vs. State of Gujarat [(2020) 14 SCC 750] has
quashed the conviction by making observations in paragraph 2 to 4 as
under:
"2. The present one is a case of circumstantial evidence. The
prosecution led evidence to establish three links of the chain: (i) motive,
(ii) last seen, and (iii) recovery of weapon of assault, at the pointing out of
the appellant. The High Court, while dealing with the evidence on record,
agreed with the finding of motive and the last seen, however, insofar as the
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recovery of the weapon of assault and bloodstained clothes were
concerned, the High Court in para 18 of the judgment held the same to be
invalid and also goes to the extent to say that the recovery which has been
made does not indicate that the appellant has committed the offence. Still,
it observed that looking to the entire gamut and other clinching evidence
against the appellant of last seen and motive, affirmed the conviction.
3. We do not find such conclusion of the High Court to be strictly in
accordance with law. In a case of circumstantial evidence, the chain has to
be complete in all respects so as to indicate the guilt of the appellant-
accused and also exclude any other theory of the crime. The law is well
settled on the above point. Reference may be had to the following cases:
(i) Sharad Birdhichand Sarda v. State of Maharashtra,
(ii) Shailendra Rajdev Pasvan v. State of Gujarat.
4. Thus, if the High Court found one of the links to be missing and not
proved in view of the settled law on the point, the conviction ought to have
been interfered with."
33. In view of the forgoing reasons, the present appeal is accordingly
allowed, and the judgment and order dated 09.11.2017 passed by the
learned Additional Sessions Judge, Court, Patan in Sessions Case No.16
of 2014, by which the appellant-appellant-accused was convicted and
sentenced, is quashed and set aside. The appellant be released from the
jail forthwith, if not required in any other case. The bail bonds are
discharged. The records be transmitted to the learned Sessions Court
forthwith.
(ILESH J. VORA,J)
\ (R. T. VACHHANI, J)
MVP
