JUDGMENT : Biren Vaishnav, J. 1. Facing conviction under Section 302 of the Indian Penal Code, by a judgment and order dated 30.06.2011, passed by the learned Additional Sessions Judge, Veraval, the appellant is in appeal before this Court. 2. The charge is framed at Exh.6. According to the charge, both the accused and the deceased-Ramesh were close friends. It was the case of the prosecution that, since the deceased had illicit relations with the wife of the accused, she was driven out of the house and subsequently the accused was staying with one Kankuben. On 31.07.2008, the second wife of the accused i.e. Kankuben and Geetaben together with the deceased had stayed in a Guest House. Subsequently, Kankuben had disclosed the fact to the accused that one Harsukh, Geetaben and the deceased had stayed over night in a Guest House, which disappointed the accused. Harbouring this motive, on 19.08.2008, the accused called the deceased Ramesh over the mobile phone and on 20.08.2008 in the morning under the pretext of carrying a sword to village Faafani accompanied him. The deceased was the driver whereas the accused was the pillion rider. In the afternoon of 20.08.2008, between 01:30 to 01:45 on the road to Umedpara under the pretext of peeing himself, the accused stopped the motor-cycle took out the sword that he was carrying and attacked the deceased Ramesh. He first injured Ramesh's cheek, and thereafter, pressed the sword against the throat, as a result of which, Ramesh died of injuries so sustained. The mobile that Ramesh was carrying was also taken away by the accused. For this incident in question, the accused was charged for the offences under Section 302 and 397 of the Indian Penal Code. 3. Vashrambhai Lakhabhai- Ramesh's brother, lodged a First Information Report on 20.08.2008. According to the First Information Report so lodged, he had come to Rasulpara in the evening at 5 O'clock on 19.08.2008 at his brother's place. On the 20.08.2008 at around 8 in the morning, both-Ramesh and he, had breakfast together. Ramesh, thereafter, left at 9 in the morning. Vashram at 11:30 had called out Ramesh to find his whereabouts. Ramesh informed that he would be late and the things that they had called for would be sent home. On the 20.08.2008 at around 8 in the morning, both-Ramesh and he, had breakfast together. Ramesh, thereafter, left at 9 in the morning. Vashram at 11:30 had called out Ramesh to find his whereabouts. Ramesh informed that he would be late and the things that they had called for would be sent home. On the same date at 7:30 in the evening, when the complainant called-up his uncle Ranjitbhai, he was informed that Ramesh had met with an accident on the Umedpara road. Subsequently, they went to the Government Hospital and they were told that Ramesh had succumbed to injuries that he had sustained as a result of being hit by a sharp edged weapons. They also found the mobile phone missing. The complaint was lodged. Nobody was on that point of time named as being responsible for carrying out the act. The complainant was examined as Prosecution witness No. 13 at Exh.144. According to this witness, Ramesh was has younger brother having stood by the narration that he had made in the complaint. He, further, stated in his examination-in-chief that, after having lodged the complaint at Exh.45, he came to know that the accused Sukha Virji had killed Ramesh. He met the Sarpanch of the village Arjanbhai. It was he, who informed him that he had seen Ramesh on his Suzuki Motor-cycle on the Umedpara road. Sukha Virji - the accused was riding pillion. He had seen them on the road from Gadhada to Umdepara, when he was proceeding from Gadhada to Umedpara. Ramesh, according to this witness, had handed over a few food packets to Arjanbhai and asked him to deliver the same at his house. Ramesh after having given food packets to Arjanbhai, left for Umedpara. This witness further stated that the accused Sukha Virji and Ramesh were good friends and he often used to visit their house. He identified the accused Sukha in the Court. The complainant, further, stated that the motive behind the incident was that Ramesh had an illicit relationship with the accused first wife Neeta and that was not to Sukha's liking, and therefore, it could be the motive behind killing Ramesh. This witness further stated that Police had recorded the statement on the same day. He also identified the muddamal articles, namely, the shoes and the clothes of the deceased-Ramesh. This witness further stated that Police had recorded the statement on the same day. He also identified the muddamal articles, namely, the shoes and the clothes of the deceased-Ramesh. Vashram further in his testimony stated that, when he went to the hospital, he was shown the diaries recovered from the body of Ramesh. A card was recovered, which showed that the blood group of the deceased was AB Positive. The witness was cross-examined. In his cross-examination he stated that, he was called to the Police Station in the evening. He stated that, he gave the complaint to the police and he categorically narrated the fact that it was Arjan who informed him that he had seen the accused-Sukha on the motor-cycle with Ramesh. 4. Prosecution Witness No. 14 at Exh.47 is the testimony of Arjan Sura. He states that he is a resident of Rasulpara and owns a flour mill. On the date of the incident i.e. on 20.08.2008, he along with one Somabhai Govindbhai had left for Harmadiya to attend the condolence meeting. After having attended the meeting when they were returning, on the road to Umedpara near Gir-Gadhada, he was Ramesh on a motorcycle in the company of Sukha Virji. Sukha was riding the pillion. He stopped Ramesh and all three of them set together for sometime. It is further stated by this witness that, he asked Ramesh about the man sitting with him on the motor-bike, to which Ramesh introduced the man as one Sukha Virji. This witness stated that he had seen Sukha in his younger days. He asked Ramesh as to where he was going, to which he replied that he was going afar. Arjanbhai and Somabhai, thereafter, went to one Dhirubhai's hotel. Ramesh came back and met him with a food packet and informed him that this food packet be delivered at his home. When Arjan inquired, as to where Sukha was, Ramesh informed him that he was standing at a gate nearby. Ramesh left soon thereafter. When Somabhai returned from the main bazaar, they both left for Rasulpara. It was in the evening at around 8 that he came to know that Ramesh had been murdered. He, therefore, went to the Government Hospital. Vashram was present there. He informed Vashram that he had seen Ramesh together with Sukha in the afternoon. Ramesh left soon thereafter. When Somabhai returned from the main bazaar, they both left for Rasulpara. It was in the evening at around 8 that he came to know that Ramesh had been murdered. He, therefore, went to the Government Hospital. Vashram was present there. He informed Vashram that he had seen Ramesh together with Sukha in the afternoon. He further testifies that it was later revealed that Ramesh was murdered at the hands of Sukha Virji, as a result of a motive. He identified the accused Sukha in Court. This witness was cross-examined. In his cross-examination, he stated that he met Ramesh for the first time at 10:30 in the morning and when he met Ramesh for the second time the interval between the two meetings could have been a hour and a half. Gadhada is at a distance of about five kilometers from Rasulpara. He wasn't sure whether Ramesh was carrying a mobile. He agreed that initially when he stopped Ramesh, he did not know the person sitting behind. However, it was Ramesh who introduced Sukha to him. According to this witness, in his cross-examination, he further states that, he knew Sukha since he was introduced by Ramesh to him and not because Sukha was at Surat for sometime. He further stated that, when Ramesh came to meet him for the second time, the accused were not sitting on the motor-cycle, but when specifically asked as to where was Sukha, Ramesh responded that he was at the gate close by. 5. Hareshbhai Masribhai- prosecution witness No. 17 has been examined at Exh.54. This witness in his testimony stated that he is also known as Harsukh. According to this witness, approximately ten days before the date of the incident, he along with Ramesh on Ramesh's motor-cycle had left their village Rasulpara at around 4 in the evening for Una. At the Una bus-stand, they met one Geetaben wife of one Kalidas and Kankuben-the wife of the accused. The daughter was also with him. They had booked a Guest House being Somnath Guest House near the Una bus-stand. Two rooms were booked and they stayed there over night. They returned the next day. The witness further stated that, he knew Sukha Virji- the accused, because he is of the same village. He identified him in the Court. The daughter was also with him. They had booked a Guest House being Somnath Guest House near the Una bus-stand. Two rooms were booked and they stayed there over night. They returned the next day. The witness further stated that, he knew Sukha Virji- the accused, because he is of the same village. He identified him in the Court. According to this witness, the motive behind the killing of Ramesh was that Ramesh had an illicit relationship with the second wife of the accused-Kankuben. This witness was cross-examined. Nothing substantial turns in cross-examination of this witness. 6. The doctor who performed the Post-Mortem on the body of the deceased has been examined as prosecution witness No. 12 at Exh.31. He was working as a Medical Officer at the Community Health Centre Gir-Gadhada. Pursuant to a police yadi on 21.08.2008, he carried out the Post-Mortem. The Post-Mortem note is produced at Exh.32. The external injuries that the deceased sustained as a result of the incident are as follows: "(1) Incised wound of right side of cheek .5 Cm away from lower lip .5 Cm x 1/2 cm x 1 cm oblique. (2) Incised wound of Right side of cheek 1cm above the injury No. 1 .8 Cm x 1/2 cm x 1 cm oblique. (3) Incised wound on right side of forehead 7 cm x 1/2 cm x 1 cm oblique. (4) CLW on the lateral side of Right knee 2 cm x 1/2 cm x 1 cm oblique. (5) 5 ligature mark on the neck of right side. Distance between 2 legislature mark is 1cm. (i) 1/2 cm x 12 cms around the neck. (ii) 1/2 cm x 12 cms around the neck. (iii) 1/2 cm x 15 cms around the neck. (iv) 1/2 cm x 12cms around the neck. (v) 1/2 cm x 12 cms around the neck and the injuries were ante-mortem. The Internal injuries have also been listed in the report." 7. In the opinion of this doctor, the death was caused due to asphyxia due to strangulation and as a result of the fractures. 8. Notable, on 29.08.2008, pursuant to the Police Yadi, the accused Sukha Virji was also examined by this doctor and the injuries Sukha-the accused sustained were a cut on the right hand near the thumb and abrasion on his knee and an injury on the left index finger. 8. Notable, on 29.08.2008, pursuant to the Police Yadi, the accused Sukha Virji was also examined by this doctor and the injuries Sukha-the accused sustained were a cut on the right hand near the thumb and abrasion on his knee and an injury on the left index finger. The injuries that the accused sustained could have been caused by a hard and blunt substance. He was shown the muddamal sword. According to the doctor, the injuries Nos. 1, 2, 3 and 5 could have been possible even without a thread. 9. The scene of the offence panchnama is at Exh.10. Besides the scene of offence- road to Umedpara, blood marks have been found on the bushes and also on the soil and card of the mobile phone was also found at the scene of the offence. Administration of discovery panchnama is at Exh.19. The accused Sukhaji Virji led the police party on a dirt track, where there were bushes and trees and the sword in question was discovered from the bushes. Exh.29 is the panchnama, by which the clothes of the accused were recovered. The accused went with the police party in jeep on the Una road towards Bharadia, where he stopped the police jeep got off the jeep and from a place at Gir-gadhada a trouser and a shirt were recovered. The panchnama records that no blood stains were found on the clothes. Corroborative evidence in the nature of Forensic Laboratory Report and Serological Report are on record, which is at Exh.92. Apart from the clothes, the sample of soil that was recovered from the scene of the incident also had the blood group AB positive. 10. Based on this evidence, the culpability of the original accused Sukhaji is to be judged. 11. Though, initially, when the complaint was lodged by the deceased-Ramesh's elder brother Vashrambhai, there was no suspect behind the killing of Ramesh. As the narrative unfolded in the complaint, Ramesh left his house on 20.08.2008 in the morning at around 9. When the complainant at around 11:30 in the afternoon called upon his mobile, he was informed that he would be late, however, the things that the family had ordered would be sent through somebody. Vashram subsequently in the evening at 7:30 was informed of Ramesh's death and on being so informed, he went to the Gadhada Government Hospital. When the complainant at around 11:30 in the afternoon called upon his mobile, he was informed that he would be late, however, the things that the family had ordered would be sent through somebody. Vashram subsequently in the evening at 7:30 was informed of Ramesh's death and on being so informed, he went to the Gadhada Government Hospital. It is testimony, which is at Exh.44, in which Vashram also reveals the fact that when he was at the Gadhada Hospital, he met Sarpanch Arjanbhai, who informed that he had seen Ramesh that afternoon along with one Sukha Virji on the motor-cycle on the road from Gadhada to Umedpara. This witness further testifies that, it was Arjan who delivered the food packet back home, which Ramesh in turn had given to Arjan when they met on the Gadhada-Umedpara road. Vashrambhai identified the accused in the Court. He further in his examination-in-chief stated that he knew Virji as both Ramesh and Ramesh and Sukha Virji were close friends and he was a frequent visitor. According to the complainant, the cause of murder could have been the illicit relationship that his brother Ramesh had with Sukha's wife Neeta. The police had recorded his statement on the next day. 12. Arjan Sura, whom the complainant met in the evening at the Gadhada Government Hospital and informed the complainant of having seen Ramesh in the company of Sukha Virji, was examined as prosecution witness No. 14 at Exh.47. Evident details come up from his version as it unfolds in his testimony that on the date of the incident, he was on his way to a place called Harmadiya with one Somabhai Govindbhai. When they were proceeding to Harmadiya, he came across Ramesh on a motor-cycle with a pillion rider. He stopped Ramesh and all the three sat together for sometime. On making inquiries, Ramesh informed Arjanbhai that the pillion driver was Sukha Virji with whom he was going to a distant place. He was introduced to Sukha, whom he had met in his younger days. Ramesh for sometime left to return again when Arjan was sitting at a hotel Ramesh had given packet to deliver food packet with the request that this be carried to his home at Rasalpura. When Arjan asked about the pillion rider, Ramesh categorically informed him that he was standing close by at a gate. Ramesh for sometime left to return again when Arjan was sitting at a hotel Ramesh had given packet to deliver food packet with the request that this be carried to his home at Rasalpura. When Arjan asked about the pillion rider, Ramesh categorically informed him that he was standing close by at a gate. Even in the cross-examination when the witness was specifically put this question, he informed of the fact that on the second meeting, Ramesh had informed him that Sukha was standing close by at a gate. That evidence is said to dent credibility of this witness to create a doubt of the fact of the last seen theory by stating that in the second meeting that Ramesh had with this witness-Arjan after about one and a half hour, Sukha was not with him, and therefore, the credibility of this witness to testify on the question of "last seen theory" should not be believed. 13. The motive behind the accused killing Ramesh has come out from the testimony of prosecution witness No. 17 Hareshbhai. In his examination-in-chief, Haresh has come out with the fact that he and Ramesh a few days before the incident had booked a Guest House at Una, where, he along with Ramesh and wife Geeta and Kankuben had stayed over night. 14. Medical evidence has come on record by way of testimony of doctor Laxmikant Dabhi, who carried out the Post-Mortem. In the nature of injuries that the doctor has explained in his examination-in-chief, it is found that the cause of death was asphyxia due to strangulation. The internal injuries also that the deceased suffered was fractures in the trachea as is evident from column No. 18 of the Post-Mortem Note. The doctor was shown the muddamal sword and in the opinion of the doctor, the injuries that caused the death were possible as a result of the use of such a sword. 15. Corroborative evidence in terms of panchnama at Exh.29 by which the clothes of the accused at his instance were recovered from the place where he led the police party and the discovery panchnama at Exh.19 where the accused led the police party towards an isolated spot and from the bushes the sword was recovered, lends support to the prosecution story that the deceased Ramesh was done to death at the hands of the accused with a sword. Medical evidence as is evident from the testimony of the prosecution witness No. 12 at Exh.31 doctor Laxmikant Dabhi also supports this stand. 16. Taking into consideration the entire incident as it is unfolded, the motive behind the act of killing Ramesh was apparent as is evident from the testimony of PW-17 Hareshbhai. It is also evident from the testimony of PW-14-Arjanbhai, that he was last seen together with the accused Sukha on the Gir-Gadhada road in the vicinity of the scene of the offence. Arjanbhai confirmed the fact that he had seen Ramesh together with Sukha, where he met Vashram-the complainant at the hospital. 17. Even the injuries that the accused sustained has been explicitly explained by the medical doctor, which also lend credence to the prosecution story. The discovery of sword and the recovery of the clothes also supports the prosecution story. 18. We, therefore, do not press to disturb the conviction of the learned Additional Session Judge as noted in the judgment and order dated 13.06.2011 to the appellant-accused under Section 302 of the Indian Penal Code. 19. The appeal, accordingly, stands dismissed. R & P to be sent back to the trial Court. Appeal Dismissed.