Gujarat High Court
Smitaben Naranbhai Vasoya vs State Of Gujarat on 2 July, 2025
NEUTRAL CITATION
R/CR.A/1366/2025 ORDER DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1366 of 2025
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SMITABEN NARANBHAI VASOYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1
MS KRINA CALLA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 02/07/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. Respondent nos.2 to 4 are the accused nos.1 to 3 in Sessions Case No.23 of 2017 on the file of learned Second Additional Sessions Judge, Rajkot. They were prosecuted for the offences punishable under Sections 302, 201, 34 and 120- B of the Indian Penal Code and Section 135 (1) of the Gujarat Police Act. Eventually, after full-fledged trial, the trial Court did not find them guilty for the said offences and they were acquitted of the said charges.
2. The appellant, who is the defacto complainant, is the mother of the deceased, being aggrieved by the impugned judgment of acquittal, preferred present appeal, challenging the legality and validity of the impugned judgment of acquittal. The State did not prefer any appeal against said judgment of acquittal.
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3. When the appeal came up for hearing for admission, we have heard Mr.Pratik Jasani, learned counsel for the appellant at length and Ms.Krina Calla, learned Additional Public Prosecutor for the first respondent-State. We have perused the material available, from the paper book that is supplied by learned counsel for the appellant.
4. Briefly stated, it is the case of the prosecution that a person by name Dipesh is the son of accused no.3 (herein after referred as "deceased"). Accused no.3 got doubt whether he is the biological father of the deceased or not. Therefore, he has decided to do away with life of the deceased on account of suspicion that he is not his son. When accused no.3 made an attempt to sell away his house property, both the complainant, who is the wife of accused no.3 and the deceased opposed and resisted him from selling the said property. A Civil Suit to restrain accused no.3 from selling the property was filed against accused no.3 by both of them. So it is stated that accused no.3 has conspired with accused nos.1 and 2 to eliminate the deceased. According to the prosecution case, accused no.1 is the nephew of accused no.3 and accused no.2 is the friend of accused no.1. Accused no.3 has paid money to accused nos.1 and 2 for the purpose of committing murder of the deceased. It is agreed that a sum of Rs.5 Lacs is to be paid by accused no.3 to accused nos.1 and 2 for committing murder of the deceased. So, accused no.3 has withdrawn some money from the ATM and has paid the said money to accused nos.1 and 2. The same was recorded in the CCTV camera at the ATM. Thereafter, accused nos.1 and 2 purchased one iron pipe from one Pramukh Hardware Shop.
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5. The deceased had two mobile phones. One phone was stolen. On 21.6.2016 night at about 9 p.m., the deceased received a phone call from the said stolen phone from accused no.1, who informed him that the phone is with him and asked him to come and meet him at a place suggested by him, to take the said phone. Accordingly, deceased went to the said place along with a person by name Ramji. Thereafter, the deceased accompanied accused no.1 and Ramji left the said place. As per the prosecution version, accused no.1 has taken the deceased to a bricks factory in the city, which is at an isolated place. There accused nos.1 and 2 attacked the deceased with iron pipe and gave a blow on his head and the deceased fell down after receiving the said blow. It is stated that accused nos. 1 and 2 have thrusted papers and thermocol pieces in his mouth to prevent him from shouting. Thereafter, they have squeezed the neck of the deceased and subjected him to manual strangulation. The deceased died in the said attack at the hands of accused nos.1 and 2. Thereafter, both accused nos.1 and 2 escaped from the scene of offence and went away.
6. The police, in control room, received a phone call from an unknown person that a dead-body was lying near the bricks factory. Immediately, they contacted the mother of the deceased. They reached the scene of offence. The mother, who is examined as PW-11, identified the dead-body of the deceased. Her statement was recorded and it was registered as an FIR in the night of 21.6.2012 for the aforesaid offences. The case was investigated. Inquest was held over the dead- body of the deceased. Thereafter, autopsy was held over the Page 3 of 12 Uploaded by R.S. MALEK(HC00180) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:51:56 IST 2025 NEUTRAL CITATION R/CR.A/1366/2025 ORDER DATED: 02/07/2025 undefined dead-body of the deceased. The doctor, who conducted autopsy, opined that the deceased died on account of manual strangulation and on account of injury sustained on his head.
7. Accused nos.1 to 3 were arrested during the course of investigation. It is stated that accused nos.1 and 2, while giving confessional statement regarding commission of offence of the said offence, also disclosed where the mobile phone, sim-card and iron pipe were thrown away after commission of offence and that accused nos.1 and 2 led the police to a place near the scene of offence where the said mobile phone, sim- card and iron pipe were thrown away and have shown the same to the police and on their disclosure statement given to police and, at the instance of accused no.2, it is stated that the said mobile phone, sim-card and iron pipe were recovered by police in the presence of mediators. The iron pipe was sent for chemical analysis and no blood was found on it and it was also sent to finger print expert and no finger prints of accused nos.1 and 2 were found on it.
8. As the investigating officer found, during the course of investigation, that accused no.3 got doubt whether he is biological father of the deceased and as he objected to sell the house, that accused no.3 has decided to eliminate the deceased and hatched up a conspiracy with accused nos.1 and 2 and agreed to pay a sum of Rs.5 Lacs to them. Accordingly, as per the preplanned strategy, accused nos.1 and 2 have attacked the deceased in an isolated place at the bricks factory and committed murder of him at the instance of accused no.3. It is stated that a sum of Rs.2,65,000/- was also recovered Page 4 of 12 Uploaded by R.S. MALEK(HC00180) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:51:56 IST 2025 NEUTRAL CITATION R/CR.A/1366/2025 ORDER DATED: 02/07/2025 undefined from accused no.1 by the police in the presence of mediators during the course of investigation.
9. After completion of investigation, eventually the police filed charge-sheet against accused nos.1 to 3 for the aforesaid offences.
10. After committal of the case to the Court of Sessions division, it was made over to learned Second Additional Sessions Judge, Rajkot, for trial. The trial Court framed charges under Sections 302, 201, 34 and 120-B of IPC and under Section 135 (1) of the Gujarat Police Act against accused nos.1 to 3. They have denied the charges and claimed to be tried.
11. During the course of trial, prosecution has examined 28 witnesses and got marked 41 exhibits to substantiate its case against the accused.
12. At the culmination of the trial, after considering said oral and documentary evidence on record and on appreciation of the same, trial Court found the accused not guilty for any of the aforesaid charges levelled against them and, accordingly, acquitted them of the said charges.
13. Aggrieved by the impugned judgment of acquittal, as noticed supra, the defacto complainant, who is the mother of the deceased, preferred the instant appeal. The State did not prefer any appeal.
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14. As can be seen from the material available on record, the entire prosecution case is purely based on the circumstantial evidence. There is no direct evidence of any eye witnesses account in this case to prove the complicity of the accused in perpetrating the said crime of slaying the deceased. It is the settled proposition of law that, in a case purely based on circumstantial evidence, the chain of events relating to said circumstances should cumulatively be proved with acceptable legal evidence without there being any missing link in the chain of events. The proved circumstances must be inconsistent with the innocence of the accused and must be consistent with the guilt of the accused. It is also relevant to note here that the standard of proof required to establish the guilt of the accused in a criminal trial is proof beyond reasonable doubt. Therefore, strict proof of the circumstances relied on by the prosecution is essential to hold the accused guilty of commission of the crime. It is also settled principle of law that in the trial of criminal case, the accused is entitled to presumption of innocence till his guilt is established and he is entitled to double presumption of the said innocence when he is acquitted by the trial Court. The proved circumstances must lead to irresistible conclusion beyond any reasonable doubt that accused and accused alone and none-else are guilty of commission of the offence.
15. Bearing in mind the aforesaid settled and cardinal principles of law relating to proof of criminal case based purely on circumstantial evidence, present case is to be considered.
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16. In a case based on circumstantial evidence, motive plays a vital role. In the instant case, two motives are attributed to accused no.3 to enter into conspiracy with accused nos.1 and 2 to do away with the life of the deceased. The first motive is that accused no.3 got doubt whether he is the biological father of the deceased or not and second motive is that when accused no.3 sought to sell away his immovable property that his wife, who is the complainant, and the deceased objected for the same and did not cooperate and, on that ground also, he had a motive to eliminate the deceased.
17. As regards his first motive is concerned, the deceased is aged about 28 years at the time of his death. For all the said period of 28 years, he was with his parents, who are accused no.3 and PW-11. Therefore, it is absolutely not believable that after a lapse of 28 years that accused no.3 got a doubt whether he is the biological father of the deceased or not and thereby he hatched up a conspiracy to kill him. Further except making the bald assertion to this effect, no evidence is forthcoming from the record to prove that accused no.3 had any such doubt that he is the biological father of the deceased or not. So the first motive is not proved to the satisfaction of the Court with any acceptable legal evidence on record. As regards the second motive is concerned, it is coming out from the evidence of PW-11, who is the mother of the deceased that she and the deceased filed a civil suit in the Court of law against the accused no.3 to restrain him from selling the house property. Though from the said evidence it is evident that there is a civil dispute relating to selling the house property between the accused no.3 and the complainant and deceased, Page 7 of 12 Uploaded by R.S. MALEK(HC00180) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:51:56 IST 2025 NEUTRAL CITATION R/CR.A/1366/2025 ORDER DATED: 02/07/2025 undefined it is not emanating from the evidence on record that it is on account of said civil dispute that he has decided to eliminate the deceased. If the said motive is true, accused no.3 must also make an attempt to kill his wife, who is PW-11, who also objected for selling the property and who also filed suit against accused no.3. So, the two motives that are attributed in this case are not proved to the satisfaction of the Court for the purpose of holding that there was a conspiracy between accused nos.1 to 3 to eliminate the deceased.
18. As noticed supra, there is no direct evidence available in this case to prove that accused nos.1 and 2 attacked the deceased. The other circumstances relied on by the prosecution are that when accused no.1 called the deceased from his lost mobile phone stating that his mobile phone is with him and asked him to come and meet him at one place near bricks factory, the deceased went to meet accused no.1 during night time on 21.6.2012 along with one Ramji and, thereafter, Ramji departed from that place and deceased accompanied accused no.1. So, according to the prosecution, Ramji has last seen the deceased along with accused no.1 and, thereafter, he died. But to our utter surprise, when said Ramji is a crucial witness to prove that he has last seen the deceased in the company of accused no.1 on the date of offence, said Ramji was not examined and he is not cited as a witness in this case, for the reasons best known to the prosecution. His non- examination is fatal to the case of the prosecution. Why he was not cited as a witness and not examined is not explained. Therefore, adverse inference under Section 114-(g) of the Indian Evidence Act is to be drawn for non-examination of the Page 8 of 12 Uploaded by R.S. MALEK(HC00180) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:51:56 IST 2025 NEUTRAL CITATION R/CR.A/1366/2025 ORDER DATED: 02/07/2025 undefined said material witness and for withholding his evidence deliberately without examining him. Inference is that if he is examined that he may not support the said concocted version of the prosecution. Therefore, the crucial fact that the deceased was last seen in the company of accused no.1 was not proved and established in this case.
19. Even the recovery of the mobile phone and sim-card of the accused at the instance of the accused no.1 is not proved in this case. Though it is stated that they were recovered at the instance of accused no.1 in the presence of mediators, on the disclosure statement given by accused no.1, the mediators did not support the said version of the prosecution. Therefore, the prosecution failed to prove the recovery of said incriminating evidence of mobile phone and sim-card of deceased at the instance of the accused.
20. Similarly, recovery of iron pipe etc. being used in the commission of offence is also not proved in this case. Though it is the case of the prosecution that iron pipe was purchased by accused no.1 and 2, the owner of the hardware shop, from where it was purchased, was not examined. Even the fact that it is recovered at the instance of the accused is not proved and as no blood was found on it, in the examination of the chemical analyst. Further finger prints of accused nos.1 and 2 were also not found on it, as per the finger print expert's report. So, it cannot be connected with the crime on the ground that it is the said iron pipe that was used for causing injury on the head of the deceased. So the connecting link of user of the said iron pipe in commission of offence is not established.
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21. Even though the call details report of the mobile phone of the deceased was filed to show that there were phone calls from the said phone to the deceased by accused no.3 as well as accused no.1, the prosecution did not produce the certificate as required under law under Section 65-B of the Indian Evidence Act. A three Judge Bench of the Apex Court in Anvar P.V. v. P.K.Basheer, (2014) 10 SCC 473 held that the electronic evidence is admissible only if it is accompanied by a certificate under Section 65-B (4) and that oral evidence or mere production of electronic record is not sufficient unless the certificate is produced. In the said case, the Court has overruled the earlier view taken in the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600], which allowed secondary electronic evidence without a certificate. Although in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801, two Judge Bench held that certificate under Section 65-B(4) is not mandatory in every case, the said judgment in Shafhi's case was overruled by another three Judge Bench of the Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorntyal, (2020) 7 SCC 1 and re-affirmed the ruling in Anvar P.V. case that Section 65-B certificate is mandatory for admissibility of electronic evidence and held that certificate under Section 65-B is a condition precedent for admitting the said electronic evidence and not merely a procedural requirement. Therefore, the CDR is also not proved as per the mode prescribed under law. It is now settled proposition of law that it is mandatory to produce certificate under Section 65-B of the Indian Evidence Act to prove the CDR. Therefore, the trial Court has rightly discarded the said evidence of CDR for Page 10 of 12 Uploaded by R.S. MALEK(HC00180) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:51:56 IST 2025 NEUTRAL CITATION R/CR.A/1366/2025 ORDER DATED: 02/07/2025 undefined want of certificate under Section 65-B of the Indian Evidence Act, which was correctly done as per law in our view also.
22. Therefore, none of the circumstances relied on by the prosecution is proved with acceptable legal evidence and the chain is not complete and there are also several missing links in the chain of events and circumstances relied on by the prosecution to establish guilt of the accused.
23. It is relevant to note that the offence took place during night time at about 9.30 p.m. on 21.6.2012 and that too at an isolated place at the bricks factory, when it was dark. When it is not proved by the prosecution with legal evidence that the deceased was seen in the company of the accused before death, it is difficult to hold that it is the accused nos.1 and 2 herein, who have taken him to the said scene of offence and attacked him and committed murder of him as alleged by the prosecution.
24. The trial Court after considering the entire evidence on record and circumstances relied by the prosecution and on proper appreciation of said evidence found many missing links in the case of the prosecution and that the prosecution failed to prove the guilt of the accused with acceptable evidence and, thereby recorded a finding of acquittal in favour of accused and against the prosecution. Upon considering the said evidence on record and on reappraisal of the same, we also found that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt by proving the complete chain of circumstances relied on by it. Therefore, we Page 11 of 12 Uploaded by R.S. MALEK(HC00180) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:51:56 IST 2025 NEUTRAL CITATION R/CR.A/1366/2025 ORDER DATED: 02/07/2025 undefined absolutely do not find any legal flaw or infirmity in the impugned judgment of acquittal of the trial Court. It warrants no interference in this appeal. We are of the considered view that no case is made out even for admission of the case for hearing. Therefore, the appeal is liable to be rejected. In fine, the appeal is dismissed at the admission stage.
25. Perfunctory investigation relating to non-examination of Ramji, a crucial witness and non-production of certificate under Section 65-B by the investigating officer is to be deprecated.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J) Sd/-
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