Research › Search › Judgment

Gujarat High Court · body

2025 DIGILAW 1047 (GUJ)

State of Gujarat v. Ramubhai Bhikhubhai Patel

2025-09-12

ANIRUDDHA P.MAYEE, SANJEEV J.THAKER

body2025
JUDGMENT : SANJEEV J.THAKER, J. 1. Challenge before us is the impugned judgment dated 13.02.1998 passed by the Additional Sessions Judge, Valsad, Camp at Valsad in Sessions Case No.40 of 1997, whereby the Sessions Judge has been pleased to acquit the respondents herein of the charges levelled against them for the offences punishable under Sections 302, 202, 212 and 34 of the Indian Penal Code. 2. The facts leading to filing of this appeal are as under: 2.1 As per the case of the prosecution, on 10/11.12.1996 between 1715 – 1900 hrs., having doubt of the deceased having illicit relationship with the wife of the respondent no.1 – original accused no.1 viz. Budhiyabhai and the original accused no.2 called the deceased in the field known as Bhandari Ghasiya Field, where the original accused no.2, along with other accused, made the deceased to consume liquor and thereafter killed him by strangulating his neck. It is specific case of the prosecution that though the original accused no.3 witnessed the incident, he did not disclose it to the police. Furthermore, he helped the accused nos.1 and 2 in hiding the dead body of the deceased in the Ghasiya Field and as such committed offence punishable under Section 201 of the Indian Penal Code. 2.2 On filing of the complaint, an FIR was registered against the accused persons and after completion of investigation, police arrested the accused persons and filed the charge-sheet before the Court of learned Magistrate, who committed the case to the Court of Sessions as per section 209 of the Code of Criminal Procedure. 2.3 The Sessions Court framed the charges. The accused pleaded not guilty. Evidence of the witnesses came to be recorded. Thereafter statement of the accused was recorded under Section 313 of the Cr.P.C. All the accused were acquitted of the offences with which they were charged. Hence, the present appeal. 3.1 Learned APP for the appellant submitted that though the learned Judge believed that the death of the deceased was homicide on the basis of postmortem report at Exh.13, so also the evidence of Dr.Pradipkumar Kure at Exh.24, who carried out the postmortem on the body of deceased, though it has been specifically stated that there was presence of alcohol in the body of the deceased, the case of the prosecution has not been believed as a whole. He, in his postmortem report, has shown the cause of death is asphyxia due to strangulation and he also reported that there were injury marks on the body of deceased. 3.2 It has also been argued that though there were corroborative evidences against the accused, the learned Judge discarded the theory of ‘last seen together’ and the case of the prosecution on the basis of loopholes in establishing circumstantial evidence. Furthermore, learned Sessions Judge also rejected the circumstantial evidence on the ground that there were contradictions in the evidence of witnesses and documentary evidence. However, the learned Sessions Judge did not take into consideration the aspect that the complainant is a rustic villager and due to his minor contradiction in evidence, the learned judge ought not to have discarded the whole prosecution case. 3.3 In support of his submissions, the learned APP has relied upon the depositions of brother of deceased viz. Ganeshbhai (Exh.17), wife of the deceased Niruben (Exh.19), Chanchalben Radakbhai (Exh.22). 3.4 In support of his contentions, he has relied upon the judgment of the Supreme Court in Balvir Singh vs. State of Uttarakhand reported in 2023 SCC Online SC 1261 4.1 Per contra, learned advocate for the respondents submitted that though the prosecution emphasized on the point of circumstantial evidence as the deceased Budhiyabhai was last seen together with original accused no.2, it could not be proved beyond reasonable doubt that the accused respondents have committed murder of the deceased Budhiyabhai. 4.2 He submits that the prosecution could not prove the case as to who has committed murder of Budhiyabhai. He submits that the Trial Court has analyzed the depositions and evidence on record in detail. He further submits that the learned Trail Court has noted the circumstances relied upon by the prosecution and dealt with each and every circumstance, while acquitting the accused. The Trial Court has also enumerated circumstances, for which, the prosecution had not produced any evidence in support of its case. He further submits that the learned Trial court has also disbelieved the motive involved and held that the prosecution could not prove any motive on behalf of the accused, that too on the basis of evidence of relevant witnesses who were treated to be the prosecution witnesses. He further submits that the learned Trial court has also disbelieved the motive involved and held that the prosecution could not prove any motive on behalf of the accused, that too on the basis of evidence of relevant witnesses who were treated to be the prosecution witnesses. He further submits that the learned Trial Court, after discussing all the circumstances, has come to the conclusion that the evidence brought on record could not prove as to who had killed the deceased and, therefore, has acquitted the accused. He, therefore, prayed that no interference, as such, may be called for in the judgment and order acquitting the accused. 4.3 Drawing attention of this Court to the evidence of the complainant, who is the real brother of the deceased Budhabhai viz. Ganeshbhai (Exh.17), so also the wife of the deceased Budhabhai viz. Niruben (Exh.19), it has been argued that though the prosecution tried to make its case good on the basis of the circumstantial evidence establishing corroboration with the motive of the accused respondents, as deceased Budhabhai was having illicit relationship with the wife of accused no.1, neither the complainant himself, in his evidence, has stated anything about deceased having illicit relationship with the wife of the accused no.1, nor the wife of the deceased herself has accepted that her husband was having any such relationship with the wife of the accused no.1 and, therefore, learned advocate for the respondents urged that, in absence of accused respondents having any motive coupled with the fact that the prosecution having failed to corroborate circumstantial evidence, this appeal is required to be dismissed. 4.4 Learned advocate for the respondents has also argued that though it has been proved by the evidence of the Medical Officer viz. Dr. Pradipkumar Kure (Exh.24) that the death of the deceased was homicidal and there was presence of alcohol in the organs of the dead body of the deceased, the prosecution failed to prove that such homicidal death has been committed by the respondents accused. It has, therefore, been argued that in absence of any such evidence which may directly connect the accused respondents with the commission of offences, this appeal be dismissed and the judgment and order of acquittal of the accused of the offences with which they were charged be upheld by this Court. It has, therefore, been argued that in absence of any such evidence which may directly connect the accused respondents with the commission of offences, this appeal be dismissed and the judgment and order of acquittal of the accused of the offences with which they were charged be upheld by this Court. 4.5 Furthermore, it has also been argued that none of evidence of any of the witness suggests the direct involvement of the accused - respondents and the Sessions Judge has rightly acquitted the accused – respondents of the offences believing them to be the interested and hearsay witnesses in view of the fact that though evidences of such prosecution witnesses lead to theory of last seen together, but it could not complete chain to prove circumstantial evidence as the prosecution witnesses turned hostile. He, therefore, prayed this Court to dismiss this appeal. 5. Having heard learned advocates for the respective parties and having gone through the evidences of the witnesses so also the documentary evidences produced before the Sessions Court so also the findings of the Court below, following undisputed facts emerge: 5.1 The fulcrum of the prosecution is circumstantial evidence which needs to be corroborated with evidence of witnesses or through documentary evidence to bring home the guilt of the accused. However, looking to the documents, on the face of it, it appears that none of the witnesses have deposed in a way that his/her evidence clearly supports the case of the prosecution, without reasonable doubt. 5.2 There is no eye witness to support the case of the prosecution and the case is entirely based on circumstantial evidence. 5.3 The prosecution case is also built upon the extra- judicial confession of the original accused no.2. However, the credibility of an extra judicial confession depends upon the veracity of the witnesses before whom it is given and the circumstances in which it was given. The statement of sister-in-law (Bhabhi) of the deceased viz. viz. Chanchalben Radkabhai, Exh.22 has stated in her evidence that accused no.2 had disclosed before her that original accused nos.1 and 3 had committed murder. However, the trial Court has rightly disbelieved the evidence of the witness Chanchalben (Exh.22) observing that extra judicial confession needs to be corroborated with the guilt of the person who makes extra judicial confession of having committed offence with the help or in connivance with other accused. However, the trial Court has rightly disbelieved the evidence of the witness Chanchalben (Exh.22) observing that extra judicial confession needs to be corroborated with the guilt of the person who makes extra judicial confession of having committed offence with the help or in connivance with other accused. Thus, the extra judicial confession made by original accused no.2 raises doubt which needs to be free from suspicion, which is not the case in the testimony of any of the witnesses. 5.4 The prosecution witness No.1 i.e. complainant Ganeshbhai Chhaniyabhai has been examined at Exh.17. He is the real brother of the deceased Budhiyabhai. From his examination-in-chief, it appears that he has deposed only to the extent that on two occasions i.e. on 09.12.1996 and on 10.12.1996, the accused Chandu Vesta had come to his residence for calling his brother Budhiyabhai and after his brother Budhiyabhai left the place on 10.12.1996 with Chandu Vesta, he did not return and he was found dead. However even if we believe the theory of ‘last seen together’ from the evidence of this witness, it does not reflect that accused Chandu Vesta had committed murder of the deceased. 5.5 The Prosecution Witness No.2 viz. Niruben Budhiyabhai, who is examined at Exh.19, is the widow of the deceased Budhiyabhai. Her evidence does not disclose any aspect which may directly connect the accused with the commission of crime. During the examination-in-chief this witness has been declared as hostile witness and even during cross- examination by the prosecution she has, in clear terms, denied about her husband having illicit relationship with the wife of the original accused no.1 – Ramubhai Bhikhubhai Patel. She even did not support the case of the prosecution on the theory of prosecution that her husband i.e. deceased Budhiyabhai had not supported the original accused No.1 Ramubhai for taking loan from the company. In her deposition, she has supported the prosecution only to the extent of last seen theory of the deceased with the original accused No.2 Chandu Vesta, however, in the opinion of this Court, nothing adverse could be inferred against any of the accused looking to deposition of this witness as even if the last seen theory is believed, there is lack of motive behind the commission of offence which this witness has, in clear terms, discarded. 5.6 The theory of last seen is also rightly rejected by the trial Court as the witnesses who had deposed that they had seen the deceased lastly together with the accused to whom deceased accompanied, have not in specific or in clear terms, supported the case of the prosecution. Merely to have seen the deceased lastly together with the accused alleged, could not prove the case of the prosecution without any reasonable doubt as there are no corroborative evidences of any of the witnesses and all the witnesses, who had deposed in this regard, are relatives of the deceased and as such they are treated to be interested witnesses. 5.7 If the deposition of prosecution witness no.3 viz. Chandanben Chandubhai Patel, who is the wife of original accused no.2, is seen it appears that this witness in her deposition at Exh.20, has discarded all the possible inference which can be drawn against accused rather can support the case of the prosecution. Even during cross-examination of this witness by the prosecution, nothing adverse could be surfaced against the accused. She has ruled out all her statement given before the police which can lead the prosecution to suggest involvement of the accused in the offence. 5.8 The deposition of Prosecution Witness No.5 viz. Chanchalben Radkabhai, who is sister-in-law (Bhabhi) of the deceased Budhiyabhai is required to be perused it only supports the prosecution theory of last seen together, however, this witness is declared hostile witness. She has not supported the case of the prosecution. 5.9 The deposition of prosecution witness no.7 viz. Radkabhai Chhaniyabhai, who is real brother of the deceased Budhiyabhai is to be perused. He is examined at Exh.25. He has stated in his evidence that on 11.12.1996 when he returned to his house and came to know that his brother Budhiyabhai was missing after he had left on 10.12.1996 evening, this witness along with his younger brother Ganeshbhai had gone in search of Budhiyabhai. He has stated that on the way, he met Chandu – original accused no.2 to whom he asked about Budhiya, who informed that Budhiya was lying in the field. He reached to the place and found Budhiya dead in the field. He has stated that on the way, he met Chandu – original accused no.2 to whom he asked about Budhiya, who informed that Budhiya was lying in the field. He reached to the place and found Budhiya dead in the field. This witness has stated in his examination-in- chief that upon asking Chandu had replied that Ramu and Mahesh had killed Budhiya as Ramu had doubts that Budhiya might have illicit relationship with the wife of accused Ramu. This witness has also during his examination-in-chief stated that Chandu told him that Ramu and Mahesh asked Chandu to bring Budhiya and also told him that Ramu had strangulated Budhiya. In the cross-examination also he has supported the case of the prosecution stating that he has disclosed in his police statement that he came to know from Chandu that Ramu and Mahesh committed murder. 6. We have also gone through the evidence on record thoroughly and we find that there is no error committed by the learned Sessions Judge while appreciating the same. We find that the prosecution has not been able to prove its case beyond reasonable doubt against the respondents accused. The evidence of the prosecution witnesses relied upon by the prosecution is self-contradictory, so also such evidences are not tenable in eye of law being hear-say or interested witnesses. Further, the conduct of all the prosecution witnesses relied upon do not inspire confidence and it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt against the respondents accused that too when the prosecution itself has emphasized its case on the basis of circumstantial evidence which need to be corroborated with the evidence of witnesses or documentary evidence, or both which may directly connect the accused with the commission of crime. The learned Sessions Judge has not committed any error. The respondents accused are entitled to the benefit of doubt as has been held by the learned Sessions Judge. The view taken by the learned Sessions Judge is a plausible and reasonable view in the facts and circumstances of the present case and the learned APP has not been able to demonstrate that the findings arrived at by the learned Sessions Judge are contrary to the evidence on record. Further, the findings arrived at by the learned Sessions Judge are in conformity with the evidence on record. 7. Further, the findings arrived at by the learned Sessions Judge are in conformity with the evidence on record. 7. Insofar as the trial Court’s not considering or emphasizing statement of the accused no.2 as Extra Judicial Confession is concerned, it is apt to refer the judgment of the Apex Court in the case of Kalinga @ Kushal vs. State of Karnataka, Police Inspector Hubli rendered in Criminal Appeal No.622 of 2013, more particularly paras:13, 14 and 15 which read as under: “13. We may now proceed to delineate the issues that arise for the consideration of this Court, as follows: i. Whether the extra judicial confession of the appellant/accused was admissible, credible and sufficient for conviction of the accused thereon? ii. Whether the testimony of PW-1 could be termed as reliable and trustworthy? iii. Whether the chain of circumstantial evidence is complete and consistent for arriving at the conclusion of guilt? 14. The conviction of the appellant is largely based on the extra judicial confession allegedly made by him before PW-1. So far as an extra judicial confession is concerned, it is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. In Chandrapal v. State of Chattisgarh6, this Court reiterated the evidentiary value of an extra judicial confession in the following words: “11. At this juncture, it may be noted that as per Section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession. As held in case of State of M.P. Through CBI v. Paltan Mallah, the extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. As held in case of State of M.P. Through CBI v. Paltan Mallah, the extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co- accused.” 15. It is no more res integra that an extra judicial confession must be accepted with great care and caution. If it is not (2022) SCC On Line SC 705 supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra judicial confession.” 8. In the present case, the extra judicial confession is essentially based on the deposition of prosecution witness Chanchalben Radkabhai (Bhabhi of the deceased) who is examined at Exh.22. The aspect of this witness being an interested witness cannot be discarded at the threshold, as her testimony could be fatal to the prosecution case on multiple parameters. She has deposed that the original accused no.2 disclosed to her about the involvement of accused nos.1 and 3 in the murder of deceased Budhiyabhai. Despite so, this witness had no clue about the incident. 9. Before proceedings further for examining the evidence of the witness before whom such confession is made by the original accused no.2 disclosing clear involvement of the accused nos.1 and 3, it is of utmost relevance to note as to before whom the confession was made. Despite so, this witness had no clue about the incident. 9. Before proceedings further for examining the evidence of the witness before whom such confession is made by the original accused no.2 disclosing clear involvement of the accused nos.1 and 3, it is of utmost relevance to note as to before whom the confession was made. This glaring mistake raises a serious doubt on the very existence of a confession, or even a statement, of this nature by the accused. 10. It is a trite in law that once an accused has been acquitted by the Sessions Court on the basis of the evidence before it, there is a presumption in his favour that he is innocent and further, he is entitled to the benefit of reasonable doubt when dealing with the merits of the appeal against acquittal. Further, the Appellate Court ought to be generally loathe in disturbing the finding of fact recorded by the Trial Court, which had an advantage of seeing the demeanour of the witnesses. If on the facts of the case, the view taken by the Trial Court is a reasonable view, the interference by the Appellate Court is not justified in the acquittal order, unless the decision shows that the findings arrived by the Trial Court are palpably wrong or are based on erroneous view of law or if such a conclusion is allowed to prevail, it would result in grave injustice. Further, it is also well settled that if the Appellate Court, on re- appreciation and re-evaluation of the evidence, cannot take a different view, if the view taken by the Trail Court is a reasonable view on the basis of the evidence on record. The interference by the Appellate Court in such a case is not warranted. 11. In view of the above discussion, we find no error in the impugned judgment and order of acquittal. The learned Trial Court has rightly appreciated the evidence on record and gave cogent reasons for its findings which are based on the evidence on record. The present Acquittal Appeal is devoid of merits and the same is accordingly dismissed. R & P, if any, lying with this Court be sent back to the learned Trial Court forthwith. No order as to costs.