AI Structured Summary
Not yet generated for this judgment
Judgment
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
By way of this application, original complainant seeks to grant leave to appeal and further prayed to admit the acquittal appeal.
Here is the Appeal by the original complainant against the judgment and order of acquittal.
Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Amreli, passed in Sessions Case No.38 of 2017, dated 16.05.2025, acquitting the accused respondents for the offences punishable under Sections 302, 201 read with Section 34, 120(B) of IPC, the original complainant –father of the deceased Naresh has preferred leave to appeal and acquittal appeal.
We have heard Mr.D.G. Rana, learned advocate and Mr.Rohan Raval, learned APP for the respective parties.
The factual matrix of the case is as under:
Deceased Naresh was resident of Village Batva Devdi, Tal.: Vadiya, Dist.: Amreli. He was married person living in a joint family consisting of parents and brothers and their family. According to the prosecution case, the accused viz. Jitendra Bhikhabhai Parmar (A1), Kalpesh @ Kapil Bhikhabhai Parmar (A2), and Lalji Valji Bhaskar (A3) entered into criminal conspiracy, harboring grievance and suspicion regarding an illicit relationship between deceased Naresh and wife of A2, acting in furtherance of their common intention, on 22.07.2017, at about 09:30 p.m., the accused called the deceased Naresh and was taken on Barvada Road, where the accused indiscriminately assaulted the deceased Naresh with the deadly weapon like knife, sword and axe, whereby the accused caused his death and threw his dead body into nearby water body. The A1 was with knife, A2 was having in his hand a sword and A3 used a weapon axe.
According to the prosecution case, the applicant-appellant father and the wife of the deceased was in search of deceased and after extensive search in the vicinity area of the village, they could not find any clue about the whereabouts of the deceased.
In the morning, the friends of the deceased found the dead body of the deceased in the water body situated at Barvada Road of the Village. The appellant father and others went to the place of the occurrence. The Village Sarpanch was informed by the appellant. He arrived at the place and after consultation with him, the appellant father lodged an FIR before Vadiya Police, inter alia stating that some unknown persons have eliminated his son. It was disclosed that the deceased was having no enmity with village person.
In such circumstances, the offence being C.R.No.20/2017 being registered for the offences punishable under Sections 302, 201, 34 and 120(B) of the IPC against the unknown persons. PW:31, I.O. N.G. Gosai was entrusted with the investigation of the case. During the investigation, the dead body of the deceased was sent for postmortem with Vadiya CHC, the panchnama of the place of occurrence being drawn in the presence of panchas, the statements of witnesses were being recorded. The I.O., during the investigation, recorded the statement of one Vinubhai Bhaskar PW:19, who in turn had disclosed in his police statement that, he saw the deceased Naresh and accused Jitendra A1 together at about 09:15 p.m. near the milk diary of the village and they were going on Barvada Road. Based on this evidence of last scene together, the I.O. enquired about the whereabouts of the accused. The accused were not found at their home. In such circumstances, the accused respondents were arrested in the alleged crime and the motive behind the murder was illicit relation of the deceased with the wife of A1. The I.O., during the investigation, arrested the accused, and seized and recovered the weapons knife, sword, and axe and clothes from the house of the accused allegedly presented by the wife, mother and father of the respective accused. The I.O., during the investigation, collected the blood samples of the deceased from the P.M. doctor. He sent the seized articles to the FSL for forensic analysis purpose. After receiving the FSL report, and upon conclusion of the investigation, the chargesheet for the offences, as referred above, came to be filed before the Magistratial Court and the case was committed to the Court of Sessions at Amreli.
The learned Sessions Judge framed charge to which the accused pleaded not guilty and claimed trial.
In order to prove the charge, the prosecution has examined as many as 31 witnesses and relied upon 24 exhibited documents.
On conclusion of oral evidence, the Trial Court recorded further statements of the accused as provided under Section 313 of the Code, wherein, they claimed their innocence and stated that they have been falsely implicated in the offence.
The learned Sessions Judge, after appreciating and examining the oral as well as documentary evidence, acquitted the accused herein for the offences with which they were charged. The Trial Court while acquitting the accused, has observed that the prosecution story based on suspicion as there is no direct evidence found against the accused. The prosecution case entirely based on circumstantial evidence. The circumstances relied upon by the prosecution like; last seen theory, motive, conduct of the accused, recovery and discovery of the weapons used in the crime, forensic evidence, having not been proved by way of reliable clinching evidence and various link as referred in the chain of circumstances are inconclusive and does not cogently and firmly establish to draw a conclusion that within all human probabilities, the crime in question being committed by the accused and non-else
In such circumstances, the Trial Court while acquitting the accused, held and observed that the prosecution has not been able to prove the charge against the accused by reliable and cogent evidence beyond reasonable doubt.
Mr.D.G. Rana, learned counsel appearing for the applicant -appellant original complainant, while assailing the impugned judgment and order of acquittal, made the following submissions:
That the findings of acquittal are contrary to law and evidence on record and the findings recorded are palpably erroneous and based on the irrelevant material;
That the Trial Court failed to appreciate that the witnesses have categorically stated that before the incident, the deceased and A1 have had altercation on account of the relation with the deceased and wife of the accused. Thus, the motive for the offence is clearly established, however, the Trial Court has ignored the material circumstance.
That the evidence of last seen together erroneously discarded by the Trial Court. The witness Vinubhai Bhaskar PW:19 has deposed that on 23.07.2017, at about 09:15 p.m., when he was out from his house for urination, he saw the deceased Naresh A1 talking each other near milk dairy of the villager and they had proceeded towards Barvada Road. The evidence of PW:19 was natural and he has no any enmity or reason to falsely depose against the accused, for which, the accused did not have offered any explanation that under which circumstances, the death of the deceased occurred. Thus, the Trial Court on flimsy grounds, observed that the witness is got up witness and cannot be relied upon to prove the circumstance of last seen together and therefore, the findings in this regard is contrary to the evidence, and settled principles of law.
That the Trial Court committed a grave error by rejecting crucial recovery panchnama (Exh.54, 77 and 79), concerning weapons and bloodstained clothes seized from the accused and the reasons assigned for rejection of the evidence that the panchnamas having not been drawn in terms of Section 27 of the Evidence Act.
That the Trial Court failed to appreciate the forensic evidence in its true perspective mainly on the ground that there was a delay in sending the samples for FSL testing. The blood group of the deceased matched with the blood group on clothes recovered from the accused’s house. Thus, the important link pointing towards the involvement of the accused having been ignored and discarded.
In such circumstances, Mr.Rana, learned counsel submitted that the prosecution succeeded in proving the charge against the accused beyond reasonable doubt and chain of incriminating circumstances required to bring home the guilt of the accused is complete in all aspects, and therefore, when the complete chain of events leading to the involvement of the crime in question is proved and established, the Trial Court, in that view of the matter, while acquitting the accused committed a serious error in appreciating the evidence. Therefore, the findings of acquittal are not based on the evidence, suffers from legal infirmity, perverse and fundamentally erroneous and thus, it is prayed that the impugned judgment is not sustainable in law.
In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused?
We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court.
Before proceeding to address the rival submissions, we would like to place on record the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the judgment of acquittal. The Appellate Court should bear in mind the presence of innocence of the accused and further that, the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner, where the other view of possible should be avoided, unless there are reasons for interference.
Undoubtedly, the prosecution case rests on the circumstantial evidence. The law with regard to the conviction on the basis of circumstantial evidence has been laid down in the judgment of Sharad Bardhichand Sharda Vs. State of Maharashtra (1984 (4) SCC 116). Paras-152 and 153 of the judgment reads as under:
“152.Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri. LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970 SCC (Cri.) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri. LJ 129]:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji SahabraoBobade & Anr. v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri.) 1033 : 1973 Cri. LJ 1783] where the following observations were made: [SCC para 19, p. 807 : SCC (Cri. p. 1047)
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(3)the circumstances should be of a conclusive nature and tendency.
(4)they should exclude every possible hypothesis except the one to be proved, and
(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
The circumstances on which the prosecution relies are as follows:
The last seen theory, as on 23.07.2017, the witness PW:19 saw the deceased Naresh and accused Kalpesh together at about 09:15 near the milk diary of village, going towards Barvada Road.
The motive - it was suspected by the A1 that the deceased was having relationship with his wife and on this issue, before the incident, the altercation took place between them.
Soon after the incident, the accused did not find at their house in the village.
The weapon allegedly used in the crime recovered and seized from the house of the accused.
Forensic science evidence pointing out towards the guilt of the accused as the bloodstained found on the clothes of the accused having been matched with the blood group of the deceased.
Having regard to the evidence on record, the issue falls for our consideration as to whether the circumstances as referred above forms chain of events pointing only to the guilt of the accused and non-else.
It is not in dispute that the death of the deceased is homicidal in nature and therefore, there is no need to further discussion on this issue.
Now let us examine the circumstances relied upon by the prosecution.
(1) The last seen theory:
In the facts of the present case, in order to prove the circumstance of last seen together, the prosecution has heavily relied upon the evidence of PW:19 Vinubhai Bhaskar. The witness has stated that on 22.07.2017 at about 09:15 p.m., for the purpose of urination, he came out from his house and at that time, he saw the accused Jitendra sitting on the bench opposite his house and after urination, he saw the deceased Naresh in the company of accused Jitendra talking each other going towards Barvada Road. The witness has further stated that thereafter, he went to his house. The witness has further stated that in the morning, he came to know about the incident and death of the deceased Naresh. The witness has further stated that he had told the father of the deceased that the deceased was lastly in the company of accused Jitendra. In the cross examination, witness has admitted that before lodging of the complaint, he had told the complainant about the theory of last seen. In such circumstances, the Trial Court in Para-55 of its judgment, assigned reasons for not believing the witness PW:19. We have carefully examined PW:19. The witness is the cousin brother of the deceased. The complainant – appellant in his FIR did not have referred the conversation made with the witness on the aspect of last seen theory. Even in the complaint, it was disclosed by the appellant that he does not have any suspicion on any person. Thus, in our opinion, the witness PW:19 is got up witness. The witness was silent till lodging of the FIR. The appellant was unaware about who had killed his son. If the appellant would have informed then he certainly could have disclosed the theory of last seen together because according to the say of the witness, he had already conveyed to the appellant. Thus, the witness being a relative of the deceased’s family is not stating true facts. Therefore, the evidence of last seen together cannot be accepted and the prosecution failed to prove that the deceased was lastly in the company of the accused Jitendra.
(2) Motive:
It is the case of the prosecution that the motive behind the murder was illicit relationship of deceased wife of the accused no.1. In case of circumstance evidence, motive for the offence is required to be proved by the prosecution. In the present case, none of the witnesses have stated that the deceased was having relation with the wife of A1. The appellant father was also unaware about the relationship. If he would have knowledge about the relation, then there is no reason for him not to disclose the said aspect in his FIR. On the contrary, he had disclosed in the FIR that his son deceased had no any enmity with anyone. Admittedly, the statement of the wife of A1 having not been recorded by the police nor she has been cited as witness. Therefore, the evidence on record does not prove the existing of necessary motive required to commit a crime by the accused.
(3) Conduct of the accused:
It is alleged that after incident, the accused fled away from the village. The Trial Court in Para-53 of the judgment did not have accepted the said circumstance to prove the abnormal conduct of the accused. Admittedly, incident occurred on 22.07.2017, and the same came to be registered on 23.07.2017 about 14:30 p.m. The accused A1 arrested on 23.07.2017 at about 18:45 p.m. and his presence was very much there in village itself, so far as accused nos.2 and 3 are concerned, nothing on record to suggest that they were not present in their house and hiding themselves. In such circumstances, the conduct of the accused after the incident, does not raise any suspicion.
(4) Seizure and Recovery of the weapons and bloodstained clothes:
In the facts of the present case, the weapon knife, sword and axe along with clothes of the respective accused i.e. A1 to A3 being seized and recovered by the I.O. PW:31. The panchnama of the recoveries being produced at Exh.54, 66 and 69. Admittedly, the weapons and clothes being presented by the family members of the accused. In other words, the knife and clothes of A1 being seized from the house at the instance of wife of the accused Shilpa, whereas the sword and axe were being seized and recovered at the instance of mother and father of respective accused i.e. A2 and A3. The panchas of respective panchnamas have supported the half heartedly as the contents of the respective panchnamas having not been fully disclosed and deposed before the Trial Court by the panch-witnesses. I.O. PW:31, mechanically and causally, referred the panchnama of recovery. Admittedly, no any weapon or clothes being seized and recovered at the instance of any of the accused. Therefore, there is no disclosure statement of the accused in terms of Section 27 of the Evidence Act. Thus, the evidence of recovery of the weapons and clothes cannot be in any manner pointing towards the guilt of the accused. The forensic evidence to this effect cannot be accepted as substantial evidence because this evidence at the best can be used as a corroborative piece of evidence.
For the reasons recorded, we are of the considered opinion that the prosecution failed to prove all incriminating necessary circumstances by reliable and clinching evidence which would constitute a complete chain without any gap, pointing to the guilt of the accused. We are conscious about the seriousness of the offence but the circumstances howsoever strong cannot take place of proof and conviction is not permissible on the basis of suspicion. It is in this context, we may profitably refer the observations made by the Supreme Court in the case of Surendra Koli Vs. State of U.P. (2025 LawSuit S.C. 1479), wherein while acquitting the accused, it was observed that when the proof fails, the only lawful outcome is to set aside the conviction even in a case of involving horrific crime.
In light of what has been noted above, the view taken by the Trial Court for acquitting the accused is plausible view and the findings of the acquittal being considered after proper appreciation of the evidence and thus, we do not find any perversity in the findings so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded before the Court below and therefore, we do not find any grounds to grant leave to appeal as prayed herein. Accordingly, the application as well as the appeal stands dismissed.