Gujarat High Court
Jelubhai Bhikhabhai Vara vs State Of Gujarat on 29 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 339 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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JELUBHAI BHIKHABHAI VARA & ORS.
Versus
STATE OF GUJARAT
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Appearance:
ABATED for the Appellant(s) No. 1,3,4
BHISHMA A. RAWAL(12270) for the Appellant(s) No. 2
HCLS COMMITTEE(4998) for the Appellant(s) No. 2
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/09/2025
ORAL JUDGMENT
1. The present appeal was filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973, (for short 'Cr.P.C.') against the judgment dated 20.03.2003, by which the Additional Sessions Judge, Fast Track Court, Amreli in Sessions Case No.41 of 2002, convicted all the appellants under Sections 325 read with Page 1 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined Section 34 of the Indian Penal Code (for short "IPC") and sentenced them for three years and six months rigorous imprisonment with fine of Rs.10,000/- and in default of payment of fine further six months simple imprisonment, and for the offence under Section 506(1) read with Section 34 IPC, the appellants were sentenced to undergo rigorous imprisonment for one year. The fine amount was ordered to be paid to the dependants of deceased.
2. The facts of the case, as could be gathered from the record states that on 24.11.2001, Mohanbhai Raghavbhai gave a complaint against the appellants alleging that appellant accused No.2 - Jayraj alias Jayubhai Gorakhbhai Vara being armed with iron pipe and other appellants assaulted deceased - Laljibhai Virabhai. It is alleged in the complaint that appellant accused No.3 - Dadubhai Matrabhai Dhandhal had squeezed the testicles of the deceased - Laljibhai Virabhai Page 2 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined and thereby he succumbed to the injuries. 2.1 On the strength of above complaint, which was registered at Chalala Police Station vide Cr.No.I-79/2001 for the offences punishable under Section 302, 34, 506(2) and Section 323 of IPC as well as under Section 135 of the Bombay Police Act, the offence was investigated by the Chalala Police and ultimately charge-sheet was filed against all the appellants.
2.2 The case was committed to the Court of sessions, which came to be numbered as Sessions Case No.41 of 2002. The charges were framed and during the course of trial, witnesses were examined and ultimately, by judgment dated 20.03.2003, all the accused were convicted for the offence, as above.
3. The appellants were four in number, who were convicted by the Additional Sessions Judge, Fast Page 3 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined Track Court. During the pendency of the appeal, since accused No.1, 3 and 4 were deceased, the appeal stood abated against them. Hence, the present appeal is proceeded by appellant No.2.
4. Learned advocate Mr.Bhishma A.Rawal for the appellant No.2 submitted that the judgment of conviction is erroneous and unwarranted on the facts and circumstances of the case. The learned Judge has relied upon three witnesses; two have been considered as eye witnesses and further the reliance is also placed on the testimony of the Doctor.
4.1 Advocate Mr. Rawal submitted that the deposition of so called eye witnesses, Mohanbhai Raghavbhai and Jagdishbhai Baghabhai does not inspire confidence. The incident had taken place on 24.11.2001 in the noon at about 3 O' clock, Mr. Rawal stated that as per the evidence of these witnesses, they both were standing near the Page 4 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined place of incident, where 'Bhagwat Saptah' was going on. They deposed that at a distance of about 60 ft., deceased Laljibhai Virabhai was grazing his cattle and at that time all four appellants came and assaulted deceased. Advocate Mr. Rawal submitted that among all the appellants, appellant No.2 - Jayraj was armed with pipe, who assaulted deceased on his chest and stomach and rest of the appellants gave fist blows to deceased and appellant No3 had squeezed the testicles of deceased. Advocate Mr. Rawal contended that had the assailants come with the intention to murder, then all would have been armed with deadly weapons. Further, contended that the weapon ascribed to appellant No.2 is also doubtful.
4.2 Mr. Rawal submitted that as per deposition of Dr. Sureshbhai Kabariya as well as postmortem report, there were no external injuries on the body of deceased and the cause of death, as noted Page 5 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined in the postmortem report was shock due to hemorrhage (intra abdominal) due to rupture of spleen. Mr. Rawal submitted that postmortem report further notes about the enlarged spleen of deceased, wherein Doctor had given very cogent evidence that an enlarged spleen becomes fragile and brittle.
4.3 Advocate Mr. Rawal further submitted regarding the location of spleen, the Doctor had deposed that the spleen is located on left side of the stomach, which is protected by the layer of ribs, muscles and skin, and for a rupture of normal spleen it requires grinding force. Mr. Rawal further stated that doctor had deposed that if the person is injured by a pipe, then there will be an injury in the nature of contusion and laceration, and if the person is assaulted or injured or beaten by such pipe or a stick, then the person will suffer an injury showing railroad pattern injury.
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NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 4.4 Learned advocate Mr. Rawal further stated that as per the doctor if the person is injured by such pipes or stick, the injury in the nature of laceration, contusion, abrasion etc. would be found on the person of the injured. The doctor had deposed that if the fist blows are given on the person and if such fist blows are given on the soft part of person, then also marks of injury would be on the person of the injured, and has also deposed that a person having an enlarged spleen is vulnerable to rupture of such spleen by even coughing or even falling down. 4.5 Advocate Mr. Rawal further submitted that the evidence of both eye-witnesses is not only contrary or conflicting to the medical evidence, but their evidence does not get any corroboration from the medical evidence. Mr. Rawal stated that the doctor had deposed that if the injury is caused by fist blows or with the iron pipe or Page 7 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined with stick, there would be an injury in the nature of contusion, laceration, abrasion etc. 4.6 Advocate Mr. Rawal further submitted that the evidence of eye-witnesses are not only contrary and conflicting to the medical evidence, and does not get any corroboration from the medical evidence, thus, submitted that in absence of any injury, the conviction under Section 325 appears to be totally unwarranted. 4.7 Learned advocate Mr. Rawal stated that the learned Judge has tried to emphasize the act of appellant No.3 for squeezing testicles of the deceased, however, as per the medical evidence, there is no injury on the testicles. On overall submission of the evidence recorded during the trial, learned Advocate Mr. Rawal urged to acquit appellant No.2.
4.8 Learned advocate Mr. Rawal has relied on following judgments to fortify his arguments. Page 8 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025
NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined
(i) Anil Phukan v. State of Assam, (1993) 3 SCC 282;
(ii) Thaman Kumar v. State (UT of Chandigarh) , (2003) 6 SCC 380.
5. Learned APP Ms. Monali Bhatt for the State submitted that the present appellant's role is major in the present incident, while rest of the accused have facilitated the present appellant as accused No.2, who with the iron pipe had given blow on the vital part of the body of deceased, which has been the cause of death of the deceased. Learned APP Ms. Bhatt further stated that the accused had the motive to kill deceased because of the earlier enmity owing to the murder. The evidence of complainant as well as witness are corroborating in nature and they have given the true version of what they had seen. Ms. Bhatt submitted that there is no reason to disbelieve both the witnesses.
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NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 5.1 Supporting the impugned judgment of the learned Judge, Ms. Bhatt submitted that the charge of Section 302 read with Section 34 and 506(2) IPC was not believed and the analysis of the evidence had led to the conviction under Section 325, 506(1) of IPC, which is just and proper with the sentence appropriately awarded, hence, submitted that the judgment and conviction and sentence be upheld.
6. Having heard learned advocates for both the sides from the array of the evidence, the postmortem report would require a pre-dominance in analysis of the evidence. The cause of death of deceased - Laljibhai Virabhai Bambhaniya was shock due to hemorrhage (intra abdominal) due to rupture of spleen. Column-17 does not record any injury, rather it is noted in Column-17 that there are no any external injury marks over body. Column-15 is with regard to external genital Page 10 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined organs, which does not record any marks of injury, while recording coloured seminal discharge from urethra, the column further notes that stool was passed.
7. The case against four accused was to face the charge under Section 302 read with section 34 and section 506(2) of the IPC being drawn stating that on 24.11.2001 at about 15:00 hours in the outskirt of village Manabhav in the field of Jadavbhai Bhurabhai Ahir in Dhari Taluka of Amreli District, all the accused in furtherance of common criminal intention, criminally intimidated complainant - Mohanbhai Raghavbhai and Jagdishbhai Raghavbhai and caused breach of public peace by publically threatening to kill them and in such an offence abetting each other had caused offence under Section 506(2) IPC. 7.1 Further, on the same day, time and place all the accused in furtherance of common intention Page 11 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined out of four, accused No.4, caught hold of Laljibhai Virabhai Ahir, and accused No.2 with an iron pipe gave a blow on his chest and accused No.3 had squeezed the testicles, while accused No.1 had given fist blows and thereby had caused voluntary grievous hurt sufficient to cause death and/or by that offence all the accused in concert had committed the offence under Section 302 read with Section 34 of IPC.
7.2 The accused No.2 was also charged for breach of proclamation of the District Magistrate for the prohibition of weapons, thus, was charged under Section 135 of the Bombay Police Act.
8. The charge specified accused No.2 of having caused injury on the chest with the iron pipe, while accused No.3 was alleged of squeezing the testicles of the deceased and accused No.1 of giving fist blows. The postmortem report does not corroborate any of such injury.
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NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 8.1 The deposition of the Doctor - Sureshbhai Balibhai Kabariya (P.W.1) refers to enlarged spleen. The Doctor had also specified that there was no external injury on the person of the deceased. The Doctor evidence cogently states that the enlarged spleen becomes fragile and brittle. The spleen is located on the left side of stomach, while the allegation against accused No.2 was of iron pipe blow on the chest. The spleen, as physically known and even as deposed by the Doctor is protected by layers of ribs, muscles and skin. Doctor had deposed that rupture of normal spleen requires grinding force. In accordance to deposition of the Doctor, if a person is injured by a pipe, then there will be injury in the nature of contusion and laceration. He further deposed that if the person is assaulted or injured or beaten by such pipe or a stick, then such person would suffer railroad pattern injury, and the part on which such Page 13 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined injuries are caused marks of injuries will be clearly seen, and further stated that if the person is injured by such pipes or stick, the injury in the nature of laceration, contusion, abrasion would be found on the person of the injured.
8.2 The Doctor further stated that if fist blows are given on the person and if such fist blows are given on the soft part of the person, then there will be visible marks of injury on the person of the injured. The evidence of the Doctor further notes that the person, who is having an enlarged spleen is vulnerable to rupture of such spleen by coughing or even by falling down. 8.3 The evidence of Doctor - Sureshbhai Balibhai Kabariya (P.W.1) coupled with postmortem report, suggests that no external injuries were observed. The cause of death is rupture of spleen. Column- 20 against the subject 'spleen', the observation Page 14 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined of the Doctor is 'Spleen are enlarged and Ruptured from middle about 10 x 8 x 2 cm. Blood clots are found over Ruptured area', kidneys congested, Bladder was empty and congested, stomach was full of food particles.
9. In background of this medical evidence, the evidence of the witnesses, who claimed themselves to be the eye-witnesses, Mohanbhai Raghavbhai (P.W.2), who is also complainant and Jagdish Badhabhai (P.W.3) of the occurrence, would require examination. Both the witnesses are related to deceased. The Court would thus, have the duty to properly examine and appreciate the credibility of the witness with the principle in mind that the credibility of evidence is not based on person's relationship or purpose but the truth, which should be verified considerably. 9.1 P.W.4 - Mohanbhai Jadavbhai, the panch witness of panchnama (Exh.28) drawn on 24.11.2001 Page 15 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined at Dhari Hospital was declared hostile. The cross-examination of the witness records that from the dead body pant, shirt and underwear (nicker) were seized. Exh.28 was drawn between 23.00 to 23.30 hours.
9.2 P.W.5 - Riyajali Nasrubhai was the panch of arrest panchnama (Exh.30) dated 07.12.2001 between 0.30 to 1.30 hours, while the witness denied arrest of accused No.1 - Jelubhai Vara, accused No.2 - Jayraj alias Jayu Gorakh and accused No.3 - Dadubhai Matrabhai. P.W.6 - Imranbhai Babubhai was also the panch of Exh.30, who too had not supported the prosecution. P.W.11
- Dhirubhai Sambhubhai was a panch of arrest panchnama Exh.39 dated 07.12.2001 between 20.30 to 21.00 hours of accused No.4 - Ramkubhai Bhikhabhai, denying the arrest, had even denied the production of clothes by the accused. Page 16 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025
NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 9.3 P.W.7 - Kanubhai Chunibhai Chauhan and P.W.8
- Dilubhai Banabhai were the hostile panchas of discovery panchnama (Exh.33). They have denied of appellant accused No.2 - Jayraj alias Jayu Gorakh producing muddamal iron pipe from a place between Manva Morgher village and even denied of muddamal clothes seized of the present appellant. 9.4 P.W.9 - Maganbhai Gandabhai and P.W.10 - Laljibhai Dudabhai were the panch witnesses examined for Exh.36, the panchnama of the place of incident, which was drawn on 25.11.2001. The hostile witnesses denied of the place of incident being shown by Mohanbhai Raghavbhai Bambhaniya (P.W.2) and also denied the suggestion of seizing of soil and grass as well as control soil, as sample from the place of incident.
10. Exh.36, the panchnama notes that the complainant - Mohanbhai Raghavbhai Bambhaniya had shown the place of offence as 40 Bigha Page 17 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined agriculture land of Jivabhai Bhurabhai Ahir and on the eastern border, 12 Bigha uncultivated land was noted and beyond that cactus fence and on the western side of the fence, approximately 30 feet area was shown as a place of offence, where the grass was found of short stature, which was also found scattered, and nothing was found remarkable at the place to be seized, nor any blood stains were observed at the place shown by the complainant. The grass was found scattered in the area of 4 x 5 feet from where 100 gram soil was dug and small quantity of dry grass was taken in an iron box.
10.1 In the background of these evidence, that the place of offence was shown by the complainant (P.W.2), who claims to be the eye-witness to the incident, nothing abnormal was observed at the place of incident. No blood stains were found. The grass, which was found scattered was in the area of 4 x 5 feet distance and it was a land Page 18 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined belonging to Jadavbhai Bhurabhai Ahir. The owner of the land had not been examined in the present matter.
10.2 The evidence of Doctor Sureshbhai Balibhai Kabariya (P.W.1) was to the effect that on 24.11.2001 in the evening at 4:55, dead body of Laljibhai Virabhai Bambhaniya aged about 20 years, resident of Ambardi was brought by his relative Bachubhai Arjanbhai Bambhaniya from Community Health Center, Dhari with Yadi to P.S.I. Dhari. The Yadi was placed in evidence at Exh.19. The document Exh.19 - Yadi refers to P.S.I. Dhari, where it was recorded by Medical Officer, Referral Hospital, Dhari to P.S.I. Dhari with subject to inform that the dead body was brought to their Hospital by their relatives and the Medical Officer had asked for investigation. The relative, who had brought the dead body was named as Bachubhai Arjanbhai Bambhaniya at 17:15 p.m. on 24.11.2001. The postmortem was conducted Page 19 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined between 21.40 to 23:40 hours. Exh.19 as well as postmortem report Exh.20 refers to the relative as Bachubhai Arjanbhai Bambhaniya. Even Doctor (P.W.1) had given the same name. The Doctor found the age of deceased as of 22 years. The dead body was brought on 24.11.2001 at 21:30 hours. 10.3 P.W.12 - Yashinbhai Ibrahimbhai on 24.11.2001, was at Chalala Police Station as in- charge P.S.O. During that period at 20.15 hours unarmed police constable - Jayantbhai Bhayabhai from Dhari Government Hospital brought a complaint, which was taken by Police Sub- inspector Shri Chavda. The complaint was of Mohanbhai Ahir (sic.), resident of Ambardi, for registration along with the report. P.W.2 registered the offence and handed the further investigation to Shri A.B. Chavda. P.W.12 identified the complaint Exh.24 and report of P.S.I. Shri Chavda Exh.41. The complaint was registered as C.R. No.79 of 2001 under Section Page 20 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 302 and 114 of IPC, Section 135 of B.P. Act. He produced a copy of Station Diary No.2 at Exh.42. In the cross-examination, the P.S.O. stated that Exh.41, the report, refers that the Police Sub- inspector was engaged in the 'Bandobast' of Gram Panchayat election work and the offence was registered of the present incident on that day at 8:15 night, and about 15 minutes prior he received the complaint as well as report. 10.4 The distance between Chalala Police Station and Dhari Hospital was of 17 to 18 kms. The person, who had brought complaint named Jayantkumar, had come on motorcycle from Dhari. The witness stated that there was no initial or his signature on Exh.41 and the police report to signify his receiving the same, and whatever he stated was as per his memory. He stated that the handwriting at Exh.42, which is station diary, was of constable Mansukhbhai and he had no personal knowledge of Exh.42.
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NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 10.5 Exh.42 is Station Diary Entry No.2 with time noted as 1.00 hour. The entry was dated 26.11.2001. The entry was in relation to I- Cr.No.79/01 under Section 302 IPC noting that accused of the matter (i) Ramku Bhikha Kadi (ii) Jilu Bhikha Kadi (iii) Jayu Gorakh Kadi and (iv) Dadu Jatra Kadi, all resident of Mannavav are very ferocious and were habitual offenders and after commission of the crime are in a habit of absconding and inconspicuously hiding themselves and prolonging late at night hour, were taking shelter in their residential house, therefore, secret watch was kept on them, and on receiving the information that the accused for clothes and money have come to Dhari, therefore, in presence of two panchas with lady constable Kokilaben along with the staffs, the inquiry was made. In the house women and children were found present. During search, women were alleged to be chattering against police stating that they would Page 22 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined file complaint, since they were coming to their house. Noting that the search of the house was made bound within the limits, and accordingly panchnama was drawn under Section 165 of Cr.P.C. Since accused were not found and without hurting the religious feelings and without causing any damage, panchnama was drawn, for that purpose, necessary entry was made. Further, the entry also noted that during the combing, necessary procedure was undertaken under the instruction of the superior officer.
11. The documents, Exh.41 and Exh.42 discloses that it was an election period of Gram Panchayat. The accused were shown to be the persons as habitual offenders and on that basis during the combing process the house of the accused were searched in connection with the present offence. The women of the house took objection to such search. It has not happened that the complainant had gone to the Police Station to give complaint. Page 23 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025
NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined P.W.12 as P.S.O. had no personal information about the complaint.
12. The Investigating Officer as P.W.16 - Amarsinh Bhimsinh Chavda affirmed that on 24.11.2001, he was on his duty in the election of Gram Panchayat in rural area of Gopalgram and when he was coming from Padargad to Ambardi, he received a wireless message from Dhari Police Station that in his area of Ambardi, Manavav village, there was 'Bhaghvat Saptha' at Surapura and in 'Kharava Bid' land at the outskirt of village Ambardi a person had died because of the injury sustained during the quarrel and in the dead condition, the body was brought to the Government Dispensary, Dhari and therefore, he was called at Government Hospital, Dhari for necessary procedure. The Investigating Officer stated that he received the message at 5:30 hours in the evening and during that period from Chalala Police Station too, he got the Page 24 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined information of the incident. Therefore, from outskirt of Ambardi village he came to Dhari Government Dispensary, where he saw deceased's relatives and the complainant of the matter and other persons present and when he inquired from the Doctor, the dead body was on the stretcher of postmortem room therefore, by keeping the complainant - Mohanbhai Raghavbhai along with him, along with two persons as panchas, drew the inquest panchnama and sent the complaint for registration from Government Hospital with Police Constable - Jayantbhai at Dhari Police Station and the complaint was registered at Dhari Police Station as I-C.R. No.79/01 under Sections 302, 114 and 323 IPC.
12.1 After registration of the complaint since the Investigating Officer was at Dhari Dispensary, he undertook the work of seizing blood stain clothes. He recorded the statement of relatives of the deceased. Thereafter, he reached Page 25 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined the place of offence along with complainant, who showed the place of offence and thereafter, drew the panchnama and also made further investigation at the place of Surapura, where 'Bhagvat Saptha' was organized.
13. The complainant P.W.2 - Mohanbhai Raghavbhai, appears to be the paternal uncle of deceased. The deceased is the son of his elder brother Virabhai and the deceased was the eldest son of Virabhai, who had two sons and two daughters. The younger son was Kishore and daughters were Sharda and Vilasben. All the children were staying along with Virabhai and were doing household and agriculture work.
14. In the case of Thaman Kumar (supra), the Hon'ble Supreme Court observed in para-16 as under:
"16. The conflict between oral testimony and medical evidence can be of varied dimensions Page 26 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.Page 27 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025
NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined 14.1 In context of the above observation, when there is total absence of the injuries which are normally caused by a particular weapon, it may legitimately inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful.
15. From evidence of the complainant, it transpires that he along with P.W.3 - Jagdish Bagha were in the management of 'Bhagvat Saptha', which was arranged at Maandan Mata Temple for four days. The organizer of the 'Saptha' was Kalubhai Kundlavala. The complainant stated that in this incident his nephew Laljibhai died. On the day of incident at Maandan Ata Temple organizer Kalubhai was present and there were around 400 to 500 people present. On that day, 'Saptha' was till 12 O' clock in the afternoon and after 12.00, there was relaxation for lunch or rest and again the 'Saptha' was to be Page 28 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined continued at 3 O' clock.
15.1 The complainant stated that at 3.00 hours, many people had gathered and among them Kishorebhai, Jagdishbhai and Laljibhai were also present. After 'Saptha' at 3 O' clock, the complainant and Jagdishbhai (P.W.3) were under the instructions of Kalubhai overlooking the generator. The complainant stated that the generator was in the field of Jadav Bhura. The generator was at the distance of 30 feet from the place of 'Saptha'.
15.2 The complainant stated that in the incident, deceased was grazing cattle in the open land, wherein the generator was installed. The witness and Jagdishbhai (P.W.3) were near the generator. At that time, four persons from Manavav were approaching, they were (1) Ramkubhai Bhikhabhai (2) Jayubhai Gorakhbhai (3) Dadubhai Matrabhai (4) Jilubhai Bikhabhai. All of them Page 29 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined complainant stated were of 'Darbar' community, it was about 3.00 to 3.30 hours. Out of the four, Jayu Gorakh was having iron-T in his hand and all four of them came near Laljibhai when he was grazing the cattle and Ramkubhai Bhikhabhai (A-4) held the hands of deceased Lalji and Jayu Gorakh (A-2) gave a blow with iron-T to his nephew Lalji at the chest and abdomen. Dadu Matra (A-3) squeezed the testicles of deceased. 15.3 The complainant stated that Ramkubhai (A-4) Dadubhai (A-3), Jilubhai (A-1) were beating Laljibhai and at that time, his nephew Laljibhai was shouting. Hearing his shouts, the witness and P.W.3 - Jagdish tried to go near Laljibhai, at that time, Ramku Bhikha (A-4) and Jayu Gorakh (A-
2) gave them threat saying that they should stand there otherwise their condition would be the same. The witness stated that he and Jagdish both got frightened and therefore, they stood where they were and started shouting, and during that Page 30 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined period all four persons started running towards the outskirt of village Manavav. The complainant stated that public in the 'Saptha' also started running and at that time Lalji, Kishore and Devsi, three of them came there, and all the five thereafter, reached near the place where Lalji Vira was lying down. The witness P.W.2 stated that when they reached there, Lalji showed the place, where he received blows with iron-T on his body. The complainant further stated that he was showing with gestures since there was foam in his mouth. Thereafter, complainant witness P.W.2 and Jagdish P.W.3 both took Lalji Vira to his field and they both again went to the place, where the 'Saptha' was going on for making arrangement for car or motorcycle. The complainant P.W.2 stated that when they reached there, no person was present there, nor any motorcycle, therefore, complainant and witness Jagdish came back in the field.
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16. In the case of State of Haryana Vs. Shakuntla, 2012 (2) RCR (Cri.) 845 SC, the Supreme Court attempts to substantiate the credibility of an interested witness, as per Court a witness is someone who has a direct or indirect interest in the accused, who has been convicted for a reason of animus or any other oblique motive. It is an agreed fact that the evidence of an interested witness is untrustworthy and must be verified before being accepted.
16.1 Furthermore, as stated in State of Haryana Vs. Shakuntla (supra), it is widely accepted that interested witnesses want the accused to be convicted, hence judicial caution is essential when hearing such testimony.
17. The very strange aspect, which becomes noticeable is that along with P.W.2 and P.W.3, there were Laljibhai Maandanbhai, Kishor and Page 32 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined Devsinh. P.W.2 complainant is not describing about the role played by these three persons. P.W.2 is not stating that Lalji Mandan, Kishore and Devsinh had helped them to carry the body of Lalji Vira. What these three people were doing that is not clarified, while P.W.2 and P.W.3 had gone for the search of a vehicle. It appears that Lalji Vira was left alone in the field, when P.W.2 and P.W.3 had gone searching for vehicle. According to the complainant, when they came back Devsinh, Kishore and Lalji, three of them had taken injured Lalji Vira home and thereafter, he and P.W.3 Jagdish reached the house of injured Lalji, at that time, mother of Lalji, Shantaben was crying. Hence, they inquired as to why she was crying, who informed that Lalji was taken to hospital and when they asked Shantaben as to who had taken Lalji to the hospital, Shantaben replied that it was Bachubhai and Vallavbhai who had taken Lalji to the hospital in a rickshaw. Page 33 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025
NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined Thereafter, P.W.2 and P.W.3, when came back in the village on motorcycle and from there to Dhari Government Hospital and when they reached the Hospital, they heard people saying that Lalji was dead.
17.1 When Laljibhai Maandanbhai, Kishore and Devsi had taken Lalji home, they could have certainly taken Lalji Vira to the Hospital, however, that had not happened. It may be that the condition may not be critical or Laljibhai must already been dead or as contended by Advocate Bhishma Raval the incident actually must not have occurred . P.W.2 does not state of seeing all the three, Laljibhai Maandanbhai, Kishore and Devsi at home, nor had he enquired from Shantaben. It was Bachubhai and Vallabhbhai, who had taken Lalji Vira at the Hospital. It may have happened that Lalji Vira may not have come to the land for grazing the cattle. He must have fallen sick at home from where he was taken to Page 34 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined hospital. Bachubhai and Vallabhbhai was not examined, who could have deposed to corroborate the say of P.W.2 and P.W.3.
17.2 What comes on record is that Kishore is the real brother of Lalji Vira, while he is nowhere to be found in the house or at the Hospital, nor Kishore is taking his brother Lalji at the Hospital. It is also very strange to note that there were about 400-500 people present in the 'Saptha'. Inspite of that, P.W.2 and P.W.3 did not find any vehicle to take Lalji Vira to the Hospital. Further, the witness stated that he saw foam in the mouth of deceased, however, P.M. Note does not record any foam like substance in the mouth. Postmortem Report clarifies that there was no discharge from ear, nose and mouth. 17.3 The cause of the incident according to complainant was that the present accused Ramkubhai (A-4) and Jelubhai (A-1) and others Page 35 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined earlier had murdered their uncle Jiva Bhura and in that incident, there was a settlement by those persons in connection with the land of 'Sattadhari' and thereafter, the witness stated that they had murdered his nephew Lalji. Prior to the murder of his uncle Jivabhai, there was murder of Nagjibhai Najabhai, who was relative of accused. Thereafter, there was murder of his uncle and in both the cases, there was settlement of land of 'Sattadhar'.
17.4 The complainant when he came to Dhari Dispensary, had given the complaint Exh.24. He also identified the muddamal iron-T, which he says was in the hand of present appellant- accused No.2 - Jayu Ghorak.
17.5 In the cross-examination, the fact which was brought on record was that the witness is residing in village Ambardi since birth. Jagishbhai (P.W.3) is paternal cousin, who was Page 36 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined also resident of Ambardi. 'Saptha' continued till 6.00 in the evening. The witness stated that the place surrounding the 'Saptha' was open. 17.6 Initially, he saw accused Nos.1 to 4, they were at a distance of 100 feet. His nephew was at a distance of 60 feet. The 'Saptha' had completed four days, wherein people from Manavav Ambardi and surrounding villages had come. When Lalji shouted, he was at a distance of 60 feet. The witness stated that the incident completed in five minutes. The witness stated that during this period Jagdish P.W.3 was all along with him. Within this five minutes, they had not gone to call any other person, nor had they tried to intervene to rescue Lalji. The witness stated that if they would go walking from the place, where the generator was installed, to their field it would take about 15 minutes. When they took Lalji to the field and again came back at the 'Saptha' and again reached to the field, it took Page 37 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined about 30 minutes. The witness stated that in the incident neither his clothes nor of Jagdish got blood stains.
17.7 The witness P.W.2 further stated that from the field thereafter to the village, they took about two hours to reach the hospital. During this period and prior to reaching the house of Laljibhai neither he, nor Jagdish had thought of giving complaint to the police.
17.8 The conduct of P.W.2 becomes very much doubtful. The deceased was at a distance of 60 feet. He and Kishore were both together, inspite of that they had not tried to intervene and save Lalji Vira. The immediate act ought to have been to take Lalji Vira to Hospital and it is unbelievable that they did not find any vehicle at the place. There was 'Saptha' attended by 400 to 500 people of the village as well as surrounding villages. It is unbelievable that Page 38 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined none of the villager had lended their vehicle to take Lalji Vira to hospital. How Laljibhai Maandan, Kishore and Devsinh carried Lalji Vira home and why Lalji Vira was not taken directly to the Hospital was not explained. It was Bachubhai and Vallavbhai, who had taken Lalji Vira from home to the Hospital in rickshaw of Madhubhai Abalbhai. Bachubhai, Vallabhai and Madhubhai all are the resident of Ambardi village. 17.9 As per cross-examination of P.W.2, the persons, who took Laljibhai to the Hospital were related to the deceased, as Vallabhai Rajabhai was uncle, while Bachubhai Arjanbhai was the uncle of deceased's father. It is neither P.W.2 nor P.W.3, nor Laljibhai Maandanbhai, Kishore or Devsinh, who had taken deceased Lalji Vira to Hospital. The witness from his village to the Hospital had gone in vehicle, however, he could not take the deceased to the Hospital, stating that he could not locate any vehicle there, which Page 39 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined itself becomes a contrary evidence and unlikely at a place where 'Saptha'was attended by 400 to 500 people. No statement of the organizer of 'Saptha' Kalubhai Kundlawala was recorded.
18. The incident of murder of Jivabhai Bhurabhai was of the year 1991. He denied the suggestion that keeping the grudge of murder of Jiva Bhura, they along with community leader Devsinhbhai and under the advise of other community members and society representatives had filed a false complaint against the accused. The witness stated that he came to know of death of Lalji Vira only at Dhari Hospital.
19. At the cost of repetition, it is required to again make a mention of Exh.19, whereby P.S.O. Dhari had informed P.S.I. Dhari of the information received from Medical Officer, Referral Hospital and C.H.C. Center Dhari, District - Amreli that the Police Diary Entry Page 40 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined No.15/2001 at 17:30 hours, Shri Bhuva of C.H.C. Center had declared that Lalji Virabhai Bambhaniya aged about 20 years was brought dead by his relatives. So, accordingly, Bachubhai Arjanbhai Bambhaniya, the relative, had brought dead body at C.H.C. Center at 17:15 hours, so at 5:15 p.m., the death was recorded.
20. In the case of Anil Phukan (supra), it was observed by the Hon'ble Supreme Court that, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary, provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the Page 41 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
20.1 It was further held in the case of Anil Phukan (supra) that, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, court should look for some independent corroboration of his testimony, Page 42 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined to decide about the involvement of the other accused in the crime.
21. The complainant was nowhere near the deceased, when he died. The fact of his searching for a vehicle is not at all believable, as there were 400 to 500 people attending 'Saptha', as stated by the complainant at a distance of 30 feet. Evidence was brought in the cross- examination that they had not decided to take deceased from the place of incident to the dispensary in vehicle and Kishorebhai, Laljibhai and others who were standing, were aware of the fact that the witnesses P.W.2 and P.W.3 Kishorebhai had left the place for bringing a vehicle. They had carried the injured from the place of incident to the field of Virabhai, the father of the deceased. When they returned back at the field of Virabhai, no one was present there to inform them that the injured was taken to hospital, and none had informed him at the Page 43 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined field of Virabhai that Laljibhai was taken home. The witness stated that he himself had believed so. Three witnesses Kishorebhai, Devjibhai and Laljibhai, who were stated by the complainant were at the place of offence, thereafter, for the whole day did not meet the witness, however, the witness voluntarily stated that all three had met him in the evening at the house of the deceased. Complainant also affirmed that when Bachubhai and Vallavbhai took deceased in the rickshaw, brother of deceased Kishorebhai was present at home. He had given the complaint approximately after three hours of deceased being taken to the Hospital. When he had given the complaint to the police, Jagdishbhai - P.W.3 was along with him.
22. Police had not recorded the statement of Jagdishbhai immediately, but recorded on the next day. The witness stated that the kitchen of 'Saptha' was running totally nearby. From the field to their house, they had gone walking and Page 44 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined it took about half an hour to reach home. The conduct of the complainant is very unnatural when he and witness had the knowledge that the condition of Laljibhai was critical, they still were leisurely going home, the testimony becomes doubtful. If he had actually seen the condition of the deceased, as described by him, where the deceased was not in a condition to orally narrate, while was explaining them in gesture and when the complainant had seen foam coming out of his mouth, he would not have left the deceased there and further they would have made arrangement immediately for the vehicle at the place of incident, which was the field of Jadavbhai Bhurabhai Ahir. The complainant stated that they took deceased from Jadavbhai Bhurabhai Ahir field to complainant's father field. The complainant does not even have the knowledge, as to what had happened to deceased and whether he died or whether Kishorebhai and others had taken Page 45 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined the deceased to the Hospital. The evidence of I.O. was that Laljibhai was brought dead to the dispensary.
22.1 Jagdishbhai Badhabhai P.W.3 is also resident of Ambardi and Virabhai father of the deceased was his elder paternal uncle. The witness states about 'Saptha' organized by Kalubhai and Laljibhai of Savarkundla. As per the witness he, P.W.3, and P.W.2 were volunteers to supply milk and butter milk to the attendees of 'Saptha'. The evidence also has come on record of P.W.3 that they were supplying milk and butter milk through rickshaw. Inspite of this fact, the complainant as well as this witness had not made arrangement to take deceased in that rickshaw to the Hospital. P.W.3 stated that pipe was in the hand of accused No.2 - Jayu, while there were no weapons with the other three. Accused No.2 had given blow with the pipe on the chest as well as abdomen, while accused No.4 - Ramkubhika, had Page 46 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined caught hold of deceased Lalji. He has referred to the same fact, as has been stated by the complainant. The witness has also stated that his personal three persons Kishore, Devsinh and third Lalji Velji, hearing the shouts had come there. The evidence further states that he as well as P.W.2 - Mohan took injured Lalji Vira at the field of Virabhai, at that time, no other person was present in the field. They left injured Laljibhai in the field and came back to 'Saptha', where they did not find any vehicle. 22.2 In the cross-examination the witness stated that there was murder of Jivabhai, who was their elder father and also there was murder of Nagbhai of Manvavav village and there was settlement with respect to land of 'Sattadhar'.
22.3 As per evidence of P.W.3, the house of the complainant as well as house of this witness and even that of the deceased Laljibhai are adjoining. He stated that Kishorebhai is brother Page 47 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined of Laljibhai and Devsinh was his brother and the house of Lalji Velji was adjoining to their house. When they had gone to the Hospital, neither Devsinh, Kishore nor Lalji Velji were present. The witness stated that when the police had come to Dhari Dispensary, he had not on his own informed the police about the incident. 22.4 The witness in the cross-examination stated that on that day of 'Saptha' there were about 400 to 500 people. He also clarified that in 'Saptha' he and Mohanbhai, the complainant, only two were the volunteers giving service, while there were no other else, as volunteers. The witness has also stated about the old enmity because of the murder.
22.5 The evidence of both the witnesses has been projected as eye witness, however, their evidence as well as conduct does not find consistency with the conduct of other persons, who are stated to be relative, who had taken deceased to the Page 48 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined Hospital. The C.H.C. Center reports that Lalji was brought dead. Even police, the Investigation Officer, had the wireless message that the dead body was brought to Dhari Government Hospital. Three other witnesses had not been examined, the conduct of these three persons, Kishore, Devsinh and Lalji Maandan are also suspicious on the evidence of P.W.2 and P.W.3 being analysed. All are neighbours. None of them had taken the deceased to the Hospital. Kishore was real brother of deceased.
23. The Investigating Officer - Shri Chavda (P.W.16) had not clarified about the conduct of all the witnesses. The complaint was directly registered under Section 302 IPC. The Investigating Officer stated that he had not seized medical papers with regard to the preliminary treatment of deceased Laljibhai.
24. The record suggests that all the panch witnesses were related to the complainant, Page 49 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined however, none of them have supported the complainant or P.W.3. The panchas of recovery of weapon from Jayu (A-2) had also turned hostile. Entire conviction is based on the testimony of two interested witnesses. As referred and on analysis of the evidence herein before, their conduct during the time of the alleged incident as well as thereafter is highly unnatural, suspicious and unreliable. The Medical Officer has categorically deposed that there were no external injuries on the body of the deceased and the cause of the death was rupture of enlarged spleen, which Doctor deposed that it could occur even due to coughing or falling. The prosecution has failed to establish a nexus between the alleged act of the present appellant and the cause of death. No injury corroborates the use of weapon as iron pipe. Despite, 400 to 500 people present there attending religious function of 'Saptha', there is no explanation as to why there Page 50 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined was no assistance from other person. Apart from the interested witnesses, no other independent person had come forward to support the complainant and the witness. The enmity between the two group had been brought on record. There were two murders earlier and it was Gram Panchayat election time too. There is no corroboration of injuries from medical evidence.
25. In the case of Ram Narain Singh Vs. State of Punjab, AIR 1975 Supreme Court 1727, it is observed that if the evidence of the witnesses for prosecution is totally inconsistent with the medical evidence it would be most fundamental defects in the prosecution case unless reasonable explained, it is sufficient to discredit the entire case.
26. On the analysis of the evidence of both the witnesses, P.W.2 - complainant and P.W.3, their evidence becomes unbelievable, since they had the motive to falsely rope the accused in the matter. Page 51 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025
NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined The deceased was taken to the Hospital by another set of persons, who have not been examined in the matter during the trial. The real fact of the injury has not been brought on record by way of any preliminary medical treatment, albeit the evidence is to the effect that Laljibhai was brought dead to the C.H.C. Center. There was no preliminary treatment at C.H.C. Center. The witness P.W.2 and P.W.3 though were closely related to the deceased - Laljibhai and had stated to be very near from the place of incident had not taken any interest to intervene to rescue the deceased. As has been observed in Anil Phukan case (supra), if such close relative does not make attempt to save the deceased and when the statement is contrary to the medical evidence the testimony of such eye witness could not be relied upon for conviction of the accused.
27. It has been observed in the case of Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Page 52 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025 NEUTRAL CITATION R/CR.A/339/2003 JUDGMENT DATED: 29/09/2025 undefined Vala And Ors., (2022) 18 SCC 683, that ocular evidence is the best evidence unless there are reasons to doubt it. It is only in case when there is gross contradiction between the medical evidence and oral evidence and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved.
28. On observing the facts and circumstances, as alleged by the witnesses and the evidence on record with the medical evidence, it could be scrutinized that there is material contradiction between the ocular evidence and medical evidence. Absence of external injuries and no injuries found on the alleged part, as deposed by the witnesses and when the evidence of the material witnesses are contradictory to the medical evidence on record, then the ocular evidence is required to be disbelieved.
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29. In view of re-examination of the evidence and the analysis, keeping in mind the position of law, as explained in the referred judgments, the conclusion reached by the learned Trial Court Judge becomes erroneous and contrary to law.
30. In the result, the appeal is allowed. The judgment of conviction and sentence dated 20.03.2003, passed by the Additional Sessions Judge, Fast Track Court, Amreli in Sessions Case No.41 of 2002 is set aside. The appellant is acquitted from all the charges. Bail bond stands discharged. Fine amount, if deposited be return back to the appellant. Registry is directed to send the Record and Proceedings back to the concerned Trial Court forthwith.
(GITA GOPI,J) Pankaj/1 Page 54 of 54 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:56:42 IST 2025