Gujarat High Court
Nasim @ Rajubhai Sahjadhusen Mansuri vs State Of Gujarat on 28 March, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2323 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
- No
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NASIM @ RAJUBHAI SAHJADHUSEN MANSURI
Versus
STATE OF GUJARAT
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Appellant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Appellant(s) No. 1
MS CHETNA SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 28/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The present appeal is filed by the appellant - original accused under Section 374 of Code of Criminal Procedure, 1973 against the Page 1 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined judgment of conviction and order of sentence dated 10.07.2008 passed by the learned Fast Track Judge, Court No.5, City Session Court, Ahmedabad (hereinafter be referred to as "the trial Court") in Sessions Case No. 296 of 2007, wherein, the appellant - accused came to be tried for offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (old) ('IPC', for short) and Section 135(1) of the Bombay Police Act, 1951 ('B.P. Act', in short). At the end of the trial, the appellant came to be convicted and he was sentenced as under:
Sections Punishment Fine In default
Section 302 of IPC Imprisonment -- --
for life
Section 447 of IPC imprisonment Rs.3000/- SI for three
for three months month
Section 135 of B.P. SI for six months Rs.500/- SI for one month
Act
2. The facts and circumstances, giving rise to this appeal are as under:
2.1 It is the case of the prosecution that the accused had a love marriage with the deceased Jayshri @ Karuna @ Shabnam and as the accused was giving physical and mental torture, the deceased took divorce from him and married to Dushyant Jagdishbhai Barot. When the accused came to know of the same, he decided to kill her.
Therefore, on 20-3-2007, when the deceased was in the hospital, the accused took her home and slit her neck and packed up the dead body in a bundle and threw her head in the Kankaria lake and body in the canal near Vatva cremation centre. A complaint to this effect was filed by Police Constable, Mohanbhai P.Parmar with Vatva Police Page 2 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Station. Upon filing of the said complaint, police started investigation and at the end of investigation, filed charge sheet against the accused in the Court.
2.2 On the basis of the complaint filed by the complainant, the First Information Report (FIR) being C.R.No.I - 163 of 2007 came to be registered with Vatva Police Station for the offence punishable under Sections 302, 201 etc of the IPC and under Section 135(1) of the B.P. Act.
2.3 After completion of investigation, as the sufficient evidence was found, the police has arrested the accused and have filed the charge- sheet against the accused before the Metropolitan Magistrate, Court No.19. As the offence was triable by the Court of Sessions, the Metropolitan Magistrate has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions where it has been registered as Sessions Case No.296 of 2007.
2.4 It is alleged that on the basis of material on record, the charge was framed against the appellant at Exhibit 2, to which he pleaded not guilty and therefore, he came to be tried by the trial Court accordingly.
2.5 In order to prove the case against the appellant, prosecution has examined 15 witnesses and exhibited 40 documents to prove its case as per the following table:
Oral evidence:-
P.W. No Name of witness Exhibit 1 Mohanbhai P. Parmar, complainant 10 2 Dr. Hasrish T. Khubachandani, medical officer 16 3 Santoshbhai P. Punekarni, panch witness 18 Page 3 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined 4 Ajaybhai G. Dadhi, brother of accused 19 5 Kyumbhai U. Pathan, panch witness 21 6 Mayudin Motibhai Sheikh, punch witness 25 7 Veersinh Bhavarsinh Rathod, owner of mobile 28 number 8 Dushyant J. Barot, second husband of 29 deceased 9 Jinabhai A. Bhangi, witness 33 10 Jinabhai Dhanabhai Vasava, police officer 34 11 Kalaji Libaji Ninama, police officer 35 12 Hasmukhlal T. Modi, police officer 38 13 Vijyaben Girishkuar Didha, mother of 41 deceased 14 Narendrasinh Jagdevsinh Zala, investigation 43 officer 15 Mukudsinh Balvantsinh Raj, investigation 48 officer Documentary evidence:- Sr. No. Description Exhibit 1 Original Complaint 11 2 Panchanama of place of offense 12 3 Inquest Panchnama 13 4 Panchanama of clothes and articles found on 14 the body of the deceased 5 Panchanama of quilt and bed-sheet found on 15 the body of deceased 6 Panchanama of the articles and place where 22 neck of the deceased was slit 7 Panch slip of article 15 A and B 23 8 Panch slip of article 16 to 18 24 9 Panchanama of seizure of weapon 26 10 Panch slip of article 19 27 11 Papers produced by the witness Dushyant on 31 inquiry 12 Report of FSL authority 39 13 Yadi to call FSL authority and visit report 40 14 Copy of details of message received over 44 phone 15 Report of charge officer 45 16 Copy of details sent by Mobile In-charge to 46 Page 4 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Vatva Police Station 17 Visiting card and cover found on the body of 47 the deceased 18 FSL forwarding letter 48 19 Receipt of FSL 49 20 Receipt of FSL 50 21 Receipt of FSL (Bottle) 51 22 Covering letter of FSL 52 23 FSL Opinion 53 24 Broadcasting report 54 25 Letter approving charge-sheet 55 26 Yadi giving permission to conduct inquest 56 27 Report of adding name in the postmortem note 57 of the deceased 28 Bottle containing the parts found on the dead 59 body of the deceased 29 Letter showing name and address of mobile 60 holder 30 Letter of Joint Commissioner to get necessary 61
sample for tracing the accused and finding the deceased.31 Letter identifying mobile phone 62
32 Letter relating to approval of charge sheet 63 33 Notification prohibiting arms 64 34 Covering letter of FSL 65 35 Opinion of FSL 66 36 FSL report of Sereological 67 37 Covering letter of FSL 68 38 Yadi of circle inspector 69 39 Map of place of offense 70 40 Report related to DNA 71 2.6 The accused upon being questioned under Section 313 of the Cr.P.C. with regard to incriminating circumstances made against him in the evidence rendered by the prosecution and he denied it and not lead any evidence in defence.Page 5 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025
NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined 2.7 The trial Court proceeded to convict and sentence the appellant as stated in the earlier part of this judgment.
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the trial Court, the appellant is before this Court by way of the present appeal.
4. Heard Mr.Soeb Bhoharia, learned advocate appearing on behalf of the appellant - accused and Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the respondent - State of Gujarat at length.
5. Mr.Soeb Bhoharia, learned advocate appearing on behalf of the appellant - accused has submitted the same facts which are narrated in the memo of appeal and has contended that the trial Court has committed an error of facts and law in passing the impugned judgment and order of conviction and in imposing the sentence for the offences punishable under Sections 302, 201 of the IPC and Section 135(1) of the B.P. Act. He has contended that the trial Court ought to have considered the fact that the case is solely based upon the evidence of the witnesses who declared hostile and there are basic improbability and infirmities in the evidence. He has also contended that there is no allegation of physical cruelty as well as of mental torture to the deceased and the mother of the deceased had not stated that the deceased was ever subjected to physical and mental torture. He has contended that the love marriage was solemnized between the accused and the deceased fifteen years back and out the said wedlock, they have two daughters, which fact indicates that the accused had ever committed any cruelty on the deceased. According to Mr.Bhoharia, learned advocate, the trial Court Page 6 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined ought to have considered the fact that the accused cannot be linked as the killer on the basis of the fact that the bed sheet which was found on the body of the deceased, given by brother of the deceased, the cloth found on the deceased was given by the mother of the deceased and the quilt was also given by the mother of the deceased and it was used by the accused and blood stains in the house. He has further contended that the trial Court has not appreciated the fact that the prosecution had not placed any evidence on record which suggests that the accused committed cruelty on the deceased and because of which the deceased had solemnized marriage with Dushyant Barot and there is no evidence of marriage solemnized between the deceased and Dushyant Barot. He has also contended that the panch witness of the recovery of muddamal article i.e. weapon of murder and place of offence declared hostile and, therefore, the panchnama of the place of the offence does not establish as a piece of evidence and even there is no independent evidence or corroboration to the allegations on record.
5.1 Mr.Bhoharia, learned advocate has contended that there is no eye witness to the incident in question and even the mother of the deceased had admitted in her cross examination that there was love affair between accused and Jayshree - deceased. He has submitted that there is no evidence on record suggesting that who has seen the accused while taking the dead body from so-called residence in Danilimda or throwing the dead body into the canal and/or Kankaria lake. He has contended that neither any evidence of ownership was collected nor any neighbours were examined as witnesses and statements of both the daughters were also not recorded.
Page 7 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined 5.2 Over-and-above the oral submissions, Mr.Bhoharia, learned advocate has submitted the written submissions as under:-
"Evidence from Civil Hospital / Last Seen together theory :
No any evidence has come on record that accused appellant was lastly seen or present in Civil Hospital and took deceased with him by getting her discharge.
On what day / date deceased was discharged.? Nothing has come on record.
Who was present at the time of discharge...?
Nothing has come on record.
No any statements of doctor / nurse / compounder / civil staff are recorded to prove the date of discharge.
PW-13 Vijayaben has deposed in Para 12 of Page No. 129 that she does not know the date of discharge.
It is Dushyant Barot who lastly visited Civil Hospital on 17/03/07 and he also met to mother of the deceased Vijayaben and therefore, as a third party, Dushyant Barot was lastly seen in hospital with deceased.
It is Ashiya who made a telephone call to Vijayaben and informed that deceased has been discharged and said Ashiya and her deceased mother are going to home and hence Ashiya can be also last person found with deceased. (P. 125 Para-7) No investigation of Mobile of accused / appellant was carried out. (P.143) No any blood samples of daughters / accused appellant were collected and sent to FSL in order to prove dead body of to be the deceased Jayshri. (P. 143) DNA test went failed due to severe degraded sample. (P. 151 cross- examination & 475) Why accused - appellant is not involved :
Motive is not proved Page 8 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined It is wrongly mentioned that appellant came to know about second marriage of his wife / deceased with Dushyant and therefore, he planned to kill...
On the contrary it is proved from PW-8 (P. 91 Para-2) that deceased and Dushyant had relations since 2005 and got married on 17/10/2005 (P. 91 Para 2 last two lines) and thereafter, deceased some time used to stay with Dushyant and sometime with Nasim (P.91 last line & P. 93 Para-3 last line & Para-4 2nd Line) and therefore, there is no question to kill his wife in the year 2007 i.e. after 2 years. And hence motive is not proved.
Nothing has come on record from family Members of the deceased that deceased was subjected to constant torture or ill treatment.
Last Seen together theory is not proved because Dushyant was found with deceased on 17/03/2007 and Ashiya informed to witness Vijayaben that deceased had been discharged and they are (Ashiya & deceased) going to home and therefore, either Dushyant or daughter Ashiya is found with deceased at last time.
Court has wrongly concluded that conduct of the appellant is doubtful (P. 309).
On the contrary It is very common for appellant and also he had adopted his mentality since 2005 that his wife sometime used to stay with Dushyant and sometime with Nasim (P.91 last line & P. 93 Para - 3 last line & Para-4 2nd Line) and appellant had never made any complaint to police or authority and therefore, it is very common for the appellant to not to make any complaint about missing of his wife.
Court has wrongly observed (at Page No. 313 4th line from top) that accused appellant was mentally sick because no any such an evidence has come on record.
Panch Witnesses of recovery of Weapons and cloths have turned hostile.
Blood group of the deceased was found allegedly matched with bad sheet, Pants, Knife and blood stains sample collected from the house.
It is required to be noted that bed sheets were never possessed by appellant accused but these bed sheets were kept in hospital and Page 9 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined therefore, this probability may not be ruled out whoever took deceased, may took these bed sheets too.
Further merely having same blood group is not concrete evidence and further Panch witnesses have also turned hostile and so-called knife was allegedly found from easily discoverable space.
It is also required to be noted that it is not proved that house was owned by appellant accused and therefore, blood stains samples allegedly collected by FSL from the so-called house cannot be the reason to record the conviction.
Great probability of involvement of Dushyant Barot.
Dushyant had visited civil hospital on 17/3/07 (P. 99) so he was last person as a third party and therefore, last seen together theory applies to him.
Dushyant was in jail in another case of causing injury to neighbor and remained in jail 7 to 8 months (P.97 Para-10 Second Line) and he came out after acquittal and then inquired about the Karuna and thereafter, he was informed by the Vijayaben that deceased was admitted in E/2 Ward, Civil Hospital and thereafter, said Dushyant did not give his mobile number to Karuna but he gave his friend Veersinh's mobile number. (P.93 Para-5) therefore, there are reason to believe that Dushyant wanted to hide his identity and he was getting every detail of deceased through his friend Veersinh's mobile phone.
While sitting into jail, Dushyant had written letters to deceased and threatened her to face dire-consequences. (P. 383 to 393 & P. 97 Para-10) Dushyant was habitual to beat anybody since he had caused injuries to neighbor and spent 7 to 8 months in the jail and further he had beaten up to deceased also and deceased was bleeding (P.129 4th, 5th and 6th Lines) Hence it is very easy and common for him to commits such an offence.
Dushyant had reason and motive to take a revenge and eliminate deceased since he was in jail and deceased had stopped to visit him in jail and therefore, he had written letters. (P. 97 Para 10 4th Line) and after coming out he was in search of deceased. (P. 93 Para-5) Dushyant used to visit Civil Hospital daily and he was seen by doctor and nurse (P. 129 Para-12) Page 10 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Witness Vijayaben had asked Dushyant Barot to stopped meeting her deceased daughter (P. 125 Para 6 last 2 lines). Further said Vijayaben thereafter, has not visited hospital (P. 129 Para-12 4th line) and therefore, Dushyant was the last person who seen together with deceased.
While recording the conviction false observation made by Hon'ble Sessions Court. (P.305 Para-35, 36, 37, 38, 39, 40 & 41 )."
5.3 Mr.Bhoharia, learned advocate has submitted that the appeal may be allowed and the impugned judgment and order of conviction may be quashed and set aside.
6. On the other hand, Ms.Chetna Shah, learned Additional Public Prosecutor, vehemently opposed the appeal contending that the impugned judgment and order of conviction passed by the trial Court is just and proper and the same deserves to be confirmed. She has contended that except three witnesses, other witnesses have supported the case of the prosecution and the prosecution has proved the case beyond reasonable doubt against the accused. She has contended that the bed-sheet, which was covered on the dead body, was given by the brother of the deceased and the clothes and the quilt found on the dead body were given by the mother of the deceased, which facts were proved by the prosecution beyond reasonable doubt. She has contended that when the deceased was hospitalized at that time the accused was sleeping on the quilt and on that circumstances, it reveals that the accused has involved in the crime in question. She has referred to the evidence of Dushyant Barot and contended that the accused brought the deceased to the hospital and the mother of the deceased has also supported the case of the prosecution. She has contended that it is an undisputed fact that the deceased was the wife of the accused and divorce was not taken place between them and they having two daughters. She has Page 11 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined contended that the accused deserted the deceased and he was giving ill-treatment and torture her and left her alone and taken the daughters with him and, therefore, the deceased developed relationship with Dusyant and he did not like the same. She has contended that the knife was discovered at the instance of the accused and discovery of the blood stain on the floor and discovered the clothes of the accused in presence of Scientific Officer.
6.1 Over-and-above the oral submissions, Ms. Shah, learned Additional Public prosecutor has submitted the written submissions as under:-
"Following mention points are pertaining to deposition of witnesses:
As per the evidence of the complainant police Head constable PW:1, Who received information about suspicious bundle Therefor he Visited place and found dead body without head. Thereafter informed higher officer and gave complaint.
As per the evidence of the Vijiyaben Girishkumkar PW: 13 the mother of the deceased who identified the dead body of the deceased Jayshree @ Karuna @ Sabnam as her daughter.
Scrutiny of the evidence is established that when the deceased was admitted in the hospital, the accused had gone with the gifted bed cover and quilt on which he was sleeping in the hospital. Which was the same bed cover and quilt in which dead body in the bundle packed up. It is also proved and established that the bed cover and quilt which were used to cover the dead body, was identified by the mother of the deceased.
The learned trial judge has properly appreciated oral as well as documentary evidence produced on record. The evidence of the mother PW:13 Vijiyaben Grishkumar fully corroborated with the case of the prosecution. "As per her evidence Previously her daughter was in the film Industry and therefore she came into contact with accused Nasim who was also known by name Rajubhai. He was from Uttar Pradesh. Her daughter went at Vadodara for film shooting but not return back. After 3 months it was came to her knowledge that she was married with Nasim and Page 12 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined her name was kept Shabnam. Out of this marriage she gave birth 2 daughter name Trnnum and Ashia. She further deposed that her daughter lastly resided with accused at near the Bombay hotel in the field of ILABEN para: 03 Pg:123 (and it was not challenge in the cross examination). She further deposed that on two three occasion Nasim deserted her alone and took her daughter with him. She also deposed that in para: 05 quarrels has taken place frequently with Nasim and their daughter when they are residing at Narol house of Bombay hotel wala. When accused and deceased residing together at relevant time health of the Jayshree was not well therefore she was admitted in the civil hospital, Ahmedabad. At the relevant time accused Nasim was staying in the hospital. She further deposed in para no: 09 on the dead body was found with the bed cover (Chadar) and quilt (Godadi) Acccused Nasim was used to sleep on that bed cover (Chadar) and quilt (Goddai) because it was given by her to Jayshree. She also identified the accused Nasim. She also deposed in para: 07 that phone call of Ashia the daughter of the Jayshree and Accused received by the her and Ashia told her that her daughter was discharge and they are going to the house". PW: 13 relevant Pg: 125 Para: 6,7,9 the above material evidence is not challenged by the defense in cross examination of this witness.
As per the evidence of PW: 08 Dusyant J Barot it transpire that deceased Jayshree @ Karuna was illtreated by the accused Nasim. As per his evidence "He married with Jayshree @ Karuna @Shabnam (Deceased) in the year 2005 at Ramji temple Chandkheda, Ahmedabad. His tenant Sunita is friend of KAruna. Karuna informed him that earlier his marriage taken place with Nasim and Nasim used to beat her and illtreated her. Therefore she lodged the complaint against Nasim at Chandkheda police station and Nasim deserted her. After marriage with this witness Nasim threatened to Karuna. Karuna was having a daughter's. Elder daughter not come with them. Therefor she again went to the Nasim. In April 2006 one of the incident happened between this witness with his landlord he was gone to judicial custody. This witness identified the accused."
Death of the deceased Jayshree @ Karuna was Homicidal as per the evidence of medical officer PW: 02 Performed the postmortem by the penal of 5 medical officer on 26.03.2007 Head and neck part of the body was missing found the injuries on the body, who opained that injuries can be caused by muddamal article - Knife.
Exh:26, Discovery Panchnama of weapon Knife (muddamal article:
19) with blood stain was discovered at the instance of accused.
Regarding this panchnama panch witness partly supported and Page 13 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined identified the signature on Exh: 26 panchnama and on Exh: 27 slip which is attached with the muddamal article no: 19 knife. This panchnama was proved by the investigating officer and blood of the deceased was found on Knife as per serological report.
Exh: 22, Discovery Panchnama Clothes of the accused was discovered at the instance of accused and also blood stain was found on the floor where the murdered of the deceased has committed, This place was discovered at the instance of the accused and muddamal article clothes and blood stain was recovered in the presence of the scientific Officer H.T. Modi PW:12 on 01.04.2007. About this Discovery Panchnama Exh: 22 corroborated through PW:05 panch witness, Scientific Officer PW:
12 and Investigation Officer.
P.W.05 Panch witness who has partly supported identified his signature on Exh: 22 discovery panchnama also identified his signature on slips those are attached with article: 15/1,15/2,15/3, 16, 17, 18 and collectively those are Exhibited as Exh: 23. Another witness about this discovery panchnama Exh: 22 proved by the Scientific Officer.
Scientific Officer Hasmukhlal Thakorlal Modi. As per his evidence His duty on investigation van Ahmedabad as a Scientific Officer. On 01.04.2007 visited the place of offence shown by the accused Nasim @ Rajubhai Sahjadhusen Mansuri at house no:05, Nabir Raw House Opposite Himalaya Bakery. Filed of ILABEN, Danilimda, Ahmedabad. Discovered the blood stain on floor Taken three blood sample. as per his report Exh 40, Pg: 399. In cross examination nothing was denied including place of offence shown by accused. No cross about the discovery and even not denied anything about his evidence.
Evidence of Investigation officer Exh: 22 Discovery Panchnama and Exh: 26 About the discovery of knife also corroborated with the FSL Report and Serological Report. As per the panchnama blood stain found on the bed cover, on the pant of the accused and blood was found on the knife - Which was the blood group of the deceased.
As per the serological report Exh: 67 Serological Report Pg: 465 Namuna number: 1 to 12 are the deceased Jayshree @ Karuna. In those Namuna blood group was shown has "O". Namuna number:
13, 14, 15, 16, 17 and 19 those were collected at the time of discovery panchnama Exh: 22 at the presence of scientific officer PW: 12.
Namunam number: 13 cotton swob blood group is "O"Page 14 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025
NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Namuna number: 14 cotton gauze blood group was "O" Namuna number: 15 and 16 blood was found.
Namuna number. 17 is control of cotton gauze Namuna number: 19 is the pant of the accused which was discovered at the instance accused "O" blood group was found on this pant.
Namuna number: 20 knife which was discovered at the instance of accused by discovery panchnama Exh: 26 "0" blood group of deceased was found on the knife.
About the conduct of the accused the accused was also not traceable on the day when the dead body of deceased was found. He was arrested on 01.04.2007. When the deceased was not traceable, no attempt was made by accused to trace the deceased nor he has filed any complaint to find out her. This circumstance clearly goes to show that the deceased was last found together with accused.
In 313 statement he has simply denied the answer of questions and lastly in 313 statement.
Argument advance by the defence side that great probably of the involvement of Dusyant Barot, is only on presumption without any evidence - During the trial the defence side has not filed any application under the criminal procedure code for further investigation under section 173 (8) of Criminal Procedure Code (CRPC). Even not filed any application to join the Dusyant Barot as accused.
On the contrary form the very beginning Dusyant Barot cooperated in investigation and one visiting card was found from the bra of the deceased at the time of the postmoterm by the medical officer it shows that deceased was having a relation with the Dusyant and therefor she hide this card in her personal clothes to contact Dusyant. This fact was corroborated by the evidence of PW: 07 Exh: 28 Veersinh Bhavarshi Thakor. As per his evidence the card which is found from the clothes of the deceased (Bra of the deceased) that card belongs to this witness - As per his evidence mobile number of this card was given to Dusyant and Dusyant was given to the deceased Jayshree @ Karuna. This witness further deposed that on this number he received 6 to 7 times phone calls from daughter of the Dusyant (Daughter of deceased Jayshree). Thus the visiting card was kept hidden by the deceased which is from the Bra of the deceased, is an additional circumstance goes against the accused.
Page 15 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined About Motive As per the evidence of mother Viijiyaben Giriskumar of the deceased Jayshree@ Karuna and evidence of PW: 08 Exh: 29 Dusyant Jagdisahbhai Barot shows that deceased was ill-treated by her husband accused Nasim and used to quarrel and deserted her alone and took with him daughters frequently and therefore deceased Jayshree @ Karuna came into contact with PW: 08 Dusyant Bhai and accused came to know about the same and decided to kill her as stated earlier.
Argument advance by the defence side that "no evidence was come on record accused appellant was last seen with the deceased or took deceased with him." In this context every circumstantial evidence last seen together theory may be there or may not be there, When case was totally hinges on the circumstances evidence the circumstantial which lead towards the guilt of the accused have been establish and they must lead to a singular conclusion that the accused is guilty of the offence and ruled out the probabilities which are likely to allow the presumption of innocent of accused. In this case number of circumstances discussed as above which lead towards the guilt of accused are fully established by oral as well as documentary evidence.
Following are the main circumstances from the evidence on record.
A. Admittedly Deceased is the wife of the accused. B. Divorce has no taken place between them.
C. Accused and deceased having two daughters. D. Accused frequently deserted his wife deceased. Accused was giving illtreatment, and torture his wife and left her alone and took daughter with him. Therefor deceased came into developed relationship with Dusyant Accused does not like it and frequently quarrelled with her.
E. Knife was discovered at the instance of the accused (Discovery panchnama Exh:26).
F. Discovery of the blood stain on the floor and also discovered the clothes of the accused in the presence of scientific officer (Exh:22 Discovery panchnama).
G. As per serological report blood of the deceased was found on the knife which is discovered, Blood of the deceased was found on the pant of the accused, Collect samples of the blood stain were recovered from the place which is shown by accused, are match with the blood group of the deceased As per serological report. H. As per the section: 45 of the Indian Evidence Act 1872 testimony of expert - Admissibility and reliability of forensic evidence presented against the accused - Give the corroborative testimonies establishing guilt beyond reasonable doubt.
Page 16 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined I. Blood stain were found on the floor where the murder of the deceased was taken place - That place was shown by the accused and in that panchnama Exh: 22 name and address was given by the accused himself (Pg: 359 of the paper book). That place was discovered at the instance of accused and blood stain and clothes are discovered at his instance. This address is Corroborated in the deposition of scientific officer PW: 12. As stated above no cross regarding this evidence by the defence side even not denied about the address of accused, As he was not residing there. J. That no explanation was given by the accused for the discovery of the weapon, Discovery of the place of the offence, Discovery of the clothes of the accused including pant, etc. K. Even not explain anything as stated above in 313 Statement. L. Scrutiny of the evidence of the mother of the deceased shows that the accused was sleeping with the deceased in the hospital on the bed cover (Chadar) and quilt (Godadi) which was seized by the investigation agency from the dead body which is covered with the blood stain which were found on the bed cover (Chadar) and quilt (Godadi) and which was identified the mother of the deceased.
22. The prosecution has examined 15 witnesses. most of the witness are supported to the case of the prosecution, Panchas are partly supported to the case of the prosecution.
All this circumstances clearly goes to state that it was only the accused and no other person who has committed the murder of the deceased. Thus, the entire chain of the murder was proved by the prosecution. Therefor it was held by the learned trial court as well as this Hon'ble High court that all the circumstance for coming on the record clearly point the finger only against the accused. Therefore, this Hon'ble High Court dismissed the appeal by judgement and order dated 22.02.2016, Relying upon the entire evidence oral and documentary and as rightly convicted the accused and confirmed the judgement and order dated:
10.07.2008 passed by the learned Fast Track Court no 05, City Session Court, Ahmedabad, In session case no: 296 of 2007."
6.2 In support of her submissions, Ms.Shah, learned Additional Public Prosecutor has relied upon the following decisions :-
(1) Mohd Aslam Vs. State of Maharashtra, (2001) 9 SCC 362; (2) Rumi Bora Dutta Vs. State of Assam, AIR 2013 SC 2422; (3) Abdul Nassar Vs. State of Kerala and another, AIR 2025 SC 691;Page 17 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025
NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined 6.3 On the basis of above contentions, Ms.Shah, learned Additional Public Prosecutor would urge that no case is made out to interfere with the impugned judgment and order of conviction and the appeal being meritless deserves to be dismissed and the impugned judgment and order of conviction deserves to be confirmed.
7. In the case of Mohd. Aslam (supra), the Hon'ble Supreme Court has held and observed in para - 7 as under:-
"7. Regarding A-1 - Mohmed Aslam (@ Sheru Mohd. Hasan), the only evidence for possession of the forbidden lethal weapon is the testimony of Prosecution Witness -34 (Nagesh Shivdas Lohar, Assistant. Commissioner of Police, CID Intelligence, Mumbai). Learned Counsel contended that two Panch witnesses who were cited to support the recovery turned hostile and therefore, the evidence of Prosecution Witness -34 became unsupported. We cannot agree with the said contention. If Panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. Nor do we agree with the contention that his testimony is unsupported or uncorroborated. The very fact that Prosecution Witness -34 produced in the court lethal weapons recovered is a very formidable circumstance to support his evidence. Learned Counsel made an attempt to show that the recovery in fact was not effected from the said flat in which A-1 - Mohmed Aslam (@ Sheru Mohd. Hasan) was residing. It is admitted that A-
1's wife and children were residing in that flat. If no such recovery was made from such flat why nobody was examined on the defence side at least to suggest that no police officer effected any recovery from there. As the trial court has chosen to believe the testimony of Prosecution Witness -34 and on a further scrutiny we too have no reason to reject the same, we are emboldened to accept the testimony of that witness."
Page 18 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined 7.1 In the case of Rumi Bora Dutta (supra), the Hon'ble Supreme Court has held and observed in paras - 10, 16, 21, 23 and 24 as under:-
"10. It is seemly to state here that the whole case of the prosecution rests on the circumstantial evidence. The learned trial Judge as well as the High Court has referred to certain circumstances. When a case is totally hinges on the circumstantial evidence, it is the duty of the Court to see that the circumstances which lead towards the guilt of the accused have been fully established and they must lead to a singular conclusion that the accused is guilty of the offence and rule out the probabilities which are likely to allow the presumption of innocence of the accused.
16. In this context, we may refer with profit to the ruling in State of Maharashtra v. Damu S/o Gopinath Shinde and others, (2000) 6 SCC 269 wherein it has been observed that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence, the legislature has permitted such information to be used as evidence by restricting the admissible portion to the minimum. Thereafter, the two learned Judges proceeded to state as follows: -
"It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered"
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
21. At this juncture, as mentioned earlier we proceed to advert to the issue pertaining to falsehood. In this context we may fruitfully refer to the authority in State of Page 19 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Maharashtra v. Suresh, (2000) 1 SCC 471 wherein it has been held that a false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances can be of inculpating nature. In such a situation a false answer can also be counted as providing "a missing link" for completing the chain. In the case at hand, the factum of recovery through the witnesses has been proven that the accused-persons had led to recovery. When it was put to them they had given an answer in the negative in a non-challant manner. The incriminating materials were concealed and they were discovered being led by the accused persons. In the case of Suresh (supra) it has been held that there are three possibilities when an accused points out the place where the incriminating material is concealed without stating that it was concealed by himself. Elaborating on the three possibilities the Court proceeded to state as follows:-
"One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is well-justified course to be adopted by the criminal court that the concealment was made by himself"
23. Presently to the cumulative effect of the circumstances brought by way of evidence. The prosecution witnesses have clearly deposed that the deceased was lying on the bed and they were told about the arrival of the miscreants and causing the injury. It is also brought in evidence that apart from the appellants the old mother of the deceased was in the house. The learned trial Judge as well as the High Court has rightly disbelieved the attack by any miscreant. It is also interesting to note that the child was immediately recovered by the accused Probal from the road. All probabilities thought to be covered by the accused-appellants gradually melted and Page 20 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined their complicity in the crime and the criminality of the mind stood revealed. On a studied scrutiny of the evidence on record, we are convinced that the circumstances that have been proven are that (i) occurrence took place about 1.30 a.m.; (ii) the deceased was found lying dead on his bed;
(iii) the accused appellants lived with him in his house and were present at the time the incident took place; (iv) accused Probal made a statement under Section 27 of the Evidence Act and led the police to recover the knife, the weapon of assault and the missing handle of the skipping rope; (v) the skipping rope was found in the bed room and was recovered at the instance of the wife; (vi) the accused- appellant Rumi Bora gave a false information and tried to mislead the police; (vii) the wife had disowned the information in her statement under Section 313 Cr.P.C;
(viii) that the accused persons had not offered any explanation with regard to recovery of weapons from their house except making a bald denial; (ix) there is evidence on record that the wife had developed an illicit relationship with the nephew of the deceased, which provides a motive;
(x) nothing had been stated in their examination under Section 313 that any one had any animosity with the deceased; (xi) nothing was stolen from the house; and (xii) the child was immediately found from the road.
24. The aforesaid circumstances clearly establish that the prosecution has proved the guilt of the accused-appellants and the circumstances are conclusive in nature to exclude every hypothesis but the one proposed to be proved. The chain of evidence is absolutely complete. Thus, we have no hesitation in affirming the judgment of conviction and order of sentence passed by the learned trial Judge that has been given the stamp of approval by the High Court."
8. We have considered the submissions made by learned advocates appearing for both the parties, judgment of conviction recorded by the trial Court and the entire evidence recorded by the trial Court during the course of the trial.
9. On perusal of the evidence recorded by the trial Court and on close scrutiny and examinations of the evidence of the witnesses, the Page 21 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined following points are required to be determined for deciding the present appeal.
(a) Whether the prosecution has established the chain of circumstances against the accused to prove the guilt for the offences charged levelled against the accused beyond reasonable doubt or not?
(b) Whether the trial Court has committed an error while passing the impugned judgment and order of conviction and sentence against the accused when the case is rest on circumstantial evidence or not?
10. The above referred questions to be answered accordingly. On considering the contentions raised by both the sides and considering the evidence recorded by the trial Court, we have perused the relevant evidence led by the prosecution i.e. P.W. 1 Mohanbhai Punjabhai Parmar examined at Exhibit 10, P.W.2 Dr. Harish Trikamlal Khubchandani examined at Exhibit 16, P.W. 8 Dushyant Jagdishbhai Barot examined at Exhibit 29 and P.W. 13 Vijyaben Girishkumar Dighe examined at Exhibit 41.
10.1 P.W.2 Dr. Harish Trikamlal Khubchandani examined at Exhibit 16 who has deposed that on examining the dead body, externally, a decomposed dead body of unknown female found without head and neck region He has deposed that the clothes on body were smeared with red colour blood stained decomposed fluid and were wet and the dead body was unidentified and size of pubic hair was 1.5 cm to 2.5 cm and built of the body was average and the dead body was cold and rigor mortise was completed. He also found the following external and internal injuries:-
Page 22 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined External injuries:-
One decapitation wound having diameter of 10 cm was found encircling lower neck region at the level of C-7 vertebra, cutting all the underlying structures like skin, soft tissues, trachea, esophagus and blood vessels, margins were sharp and clean cut. Soft tissues underlying this wound were having contusion and red in colour. On front aspect of the wound 54cm above Pubic Symphysis, 132 cm above, left heel, up 136 cm above right heel. In back aspect of the wound, 138 cm above right heel. 136 cm above left heel and 52 cm above gluteus fold.
One encircling cut wound was present in the mid of the abdomen level cutting skin, soft tissues and muscles in the way. The dead body was connected with spine. Intestines and abdominal viscera seen intact. On the anterior side, the lower border of wound was 13 cm above the pubic Symphysis, 80 cm above right heel, 88 cm above left heel. On the posterior side, lower border was 14 cm above gluteus fold, 100 cm above right heel, 98 cm above left heel. Both margins of wounds multiple oblique to vertical cuts of size 0.5 to 0.3cm in length at places decomposed blood found present in the wound.
Irregular red colour contusion of size 3 x 2 cm was present over outer aspect of left arm, 8 cm above left elbow.
Oblique stab wound of size 2 cm x 1 cm x subcutaneous deep was present over outer aspect of right upper chest 15cm below axilla, 17cm away from mid-line. The margins were clean cut and sharp. Both angles were acute.
In external examination of dead body, cut fracture was present in C7 vertebra.Page 23 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025
NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Injury No.17-A and 17-3 were antemortem in nature whereas opinion cannot be given about nature of the Injuries No.17(2), 17(4) and 18.
On examining the dead body internally, head and neck region were missing. Underneath injury described in Col.No.17(4), muscles and ribs of chest wall were intact. Rest of the chest wall intact, no injury found. The upper part of esophagus was missing and decomposition was found in lower part. Lungs and heart were at the stage of decomposition. Abdominal cavity few CC ml decomposed blood found present. Stomach was empty, no foul smell was perceived and internal skin was normal. Decomposed gas was found in intestine but no marks of injury were found. Decomposition was observed on the rest of internal abdominal organs and no injury was found. Urinary Bladder was empty. No injury was seen in the internal genital part. Accordingly, after having examined the dead body article Nos. 1 to 10 as mentioned in viscera form, after labeling and sealing, were handed over to Maulikkumar, Police Constable, Buckle No.9829 for examining in Forensic Science Laboratory.
On examining the spinal cord, fracture on C7 vertebra was found.
He believed that the probable reason of death is, "shock and hemorrhage as a result of injury received on body". However, viscera were sent to FSL for examination.
Muddamal article No.19 is in sealed condition and it is opened with the permission of Court. Upon showing the Muddamal article No.19 to the witness, he stated that injuries as mentioned in P.M. can be caused by Muddamal article No.19. Moreover, the witness stated that such injuries can be caused with a heavier sharp weapon too.Page 24 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025
NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Any person can cause injury from near and with force by Muddamal article No.19 and can cause injuries as mentioned in the P.M. and cause death. By Muddamal article No.19, neck can be cut by giving a forceful blow to any person. If a person is killed and thrown in the water, his dead body could be decomposed after swelling.
In the cross-examination, this witness has deposed that the death of the deceased seemed to have been caused about 7 to 8 days before postmortem. When the dead body was brought to me, its cloths were stained in red colour and were somewhat wet. We have read inquest Panchnama before performing postmortem. He was informed that the dead body was taken out from canal water. In spite of there being no head on the dead body, the woman's death may or may not have caused on account of suffocation or strangulation. The witness stated that there was one contusion on the soft tissue from where the neck was cut which may happen due to suffocation or cutting the neck. He did not find any such marks during postmortem that death of the dead body was caused due to drowning in water. If person died due to drowning, it appears from his lungs, abdomen and intestine. It is true that as the lungs were decomposed, they could not be examined. We examined trachea. The witness stated that it was cut. It is true that as the trachea was cut and decomposed we could not observe with regard to process of drowning. It is true that the deceased was inflicted injuries with heavy and sharp weapon. In this Case, it may have happened that the deceased's neck may be cut after strangulating her with an intention to destroy evidence.
10.2 P.W. 13 Vijyaben Girishkumar Dighe examined at Exhibit 41, who has deposed that her daughter was working in Gujarati film industry before the incident and she has worked in several Gujarati Page 25 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined serials. She came into contact with accused Nasim due to working in film line. Nasimbhai was also known as Rajubhai whose native was U.P.. Her daughter Karuna went to Vadodara for film shooting and did not return. After three months, she came to know that her daughter had married Nasim and adopted name Shabnam after her marriage and she gave birth two daughters out of their wedlock and her daughters' names were Tarannum and Ashiya. Her daughter and herself did not meet after she came to meet her with her elder daughter Tarannum. She met her daughter when she gave birth to her second daughter. When her daughter came to meet her first and second time, she came to know that they were residing at Bapunagar in Ahmedabad.
She has deposed that her daughter resided at two or three places in Bapunagar and lastly, they were residing near Bombay Hotel, situated near Ilaben's farm. She came to know that, she was living in joint family at her residence near Ilaben's farm and that, they had separate kitchens. When her daughter was residing near Ilaben's farm, she was visiting her at Chandkheda and speaking abnormally, which she did not understand. She was having treatment at Civil Hospital. Nasim was selling bangles at that time.
Nasim and her daughter resided in her neighbourhood in Chandkheda village also and he was engaged in bangle works and masonry work at that time and he was not earning much from bangle works. Nasim left with both of his daughters. She did not know as to where did he go. Jayshri was living alone in Chandkheda village and selling home industry articles for livelihood. Nasim returned after three to four months to take Jayshri with her. Jayshri told him to come Page 26 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined with both of their daughters so that they can live together. Therefore, Nasim returned with both of their daughters and they lived in Chandkheda village.
Nasim left again with both of his daughters and her daughter was living alone in her house. Later, one of Jayshri's friends met her and suggested her to remarry and, therefore, Jayshri married a person named Dushyant Barot. Jayshri lived with Dushyant and his family for some time and later, shifted to Meghaninagar. When Jayshri and Dushyant were residing in Chandkheda, Nasimbhai came there. Jayshriben had improvement in her mental illness at that time. When she recovered health, she started job in Darshan Hospital. Nasim stayed there and took her to the house situated near Bombay Hotel at Narol. She once visited their house at Narol. They were having matrimonial disputes as any married couple have, but Nasim was used to compromise.
Jayshri's health deteriorated again after shifting to Narol and her daughter took to her. Therefore, she got her admitted in Civil Hospital and informed Nasim about it over phone call. Nasim came to the hospital and he was staying there. She left in the evening. she went to see Jayshri once or twice thereafter. Once when she went there, Dushyant Barot had also come there. She told Dushyant not to meet Jayshri and that, if he wanted to meet her, he came to meet in presence of Nasim.
When she was doing domestic work at Priyaben's house, She received a phone call from Jayshri's daughter Ashiya on the phone of Page 27 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Priyaben's house at about ten to eleven o'clock and she told her that, we were discharged from the hospital and going home, so you do not come to Civil Hospital.
Thereafter, she came to know from newspaper that a dead body was found and police came to her house. She saw the dead body and it was not identifiable. But, she identified the blanket and bed-sheet in which the dead body was covered, because the blanket and bed-sheet was gifted by her. She gave the blanket as her grand-daughter liked it and her son gave the bed-sheet to Jayshri when she came to her house before two years. She did not go to house of her daughter after she received a phone call regarding her daughter at Priyaben's house. She was trying to contact Nasim on his mobile phone, but he was not reachable and later, she received news of her death.
She has deposed that the blanket and the bed-sheet, found from the dead body was kept in the hospital as Nasim was using it for sleeping. She knew Nasim. He was present today in the court. She can identify blanket and bed-sheet of muddamal if shown to her. Muddamal Article Nos.1 to 3 are in sealed condition and are being opened with permission of the court. They are one bed-sheet, one green and one red blanket made of cloths. They are the same which she had given. The witness identifies the muddamal. Police recorded her statement.
In her cross-examination this witness has stated that it is true that she started to have visiting terms with Nasim after birth of their daughters. It is true that Nasim and Jayshri resided near her house in Page 28 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Chandkheda for long period of time. It is true that Nasim was earning by hard work for livelihood of his family. It is true that Nasim and Jayshri were loving each other too much.
It is true that Jayshri's mental health had declined since two and half to three years prior to the incident. It is true that she was admitted in Civil Hospital and also given electric shocks two or three times. It is true that Jayshri used to leave home whenever she felt unable to understand anything due to her mental illness. It is true that once Nasim took Jayshri to Firozabad. It is true that Jayshri returned Ahmedabad with her younger daughter as her mental health was not good. It is true that Nasim came with their elder daughter to enquire about Jayshri and I informed him that Jayshri had come. It is true that Jayshri was admitted to Civil Hospital on 14/02/2007. She remained in the hospital for seven to eight days and she was discharged thereafter. It is true that as her health deteriorated, she was admitted to Civil Hospital again on 26th February. she got her admitted to Civil Hospital. Jayshri's elder daughter was living in Nasim's village in U.P. Nasim was residing in Narol at that time.
She has stated that Nasim did not divorce Jayshri. she had never known that Nasim had divorced Jayshri. She had not solemnized marriage of Jayshri with Dushyant she had known that Jayshri and Dushyant got married in temple. She did not remain present in their wedding. She has not seen any evidence of their wedding. She came to know that wedding of Jayshri and Dushyant was false. It is true that Jayshri and Dushyant did not have any child out of their wedlock. She did not know whether Dushyant has any daughter. It is true that Jayshri filed complaint that Dushyant assaulted her. Now she stated Page 29 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined that Jayshri might have filed complaint that Dushyant assaulted her. She saw Jayshri covered in blood. When she asked Jayshri about it, she told her that Dushyant assaulted her. The conversation when she told Dushyant not to come to the hospital to meet Jayshri was lasted two minutes. She cannot state whether it displeased or not Dushyant when she told him not to come there. It is true that Dushyant was coming to the hospital to meet Jayshri daily and the doctors and nurses had seen him. She did not go to the hospital after she told Dushyant not to come to meet Jayshri in the hospital. She did not get to know as to on which date Jayshri was discharged from the hospital. The witness states that, sister informed me on 31 st of the month that she has left in the evening before two days. It is true that Jayshri had left home due to her mental illness and she was searched and taken to home. She was doing domestic work at the house of Priyaben at the time of the incident. She was also doing work in the houses of Mathur Saheb, Sumant Saheb and Mirani Saheb for one hour at each house. She did know phone number of any of them. It is true that the phone call made by the younger daughter was received by Priyaben. It is true that the first call was made on Priyaben's phone. It is not true that Priyaben informed her that Jayshri was discharged. The witness stated that the first call was received by Priyaben and thereafter, another call was made to her and she was informed that Jayshriben had been discharged. It is true that Ashiya is younger daughter of Jayshriben. She was seven or eight years old. She talked to Ashiya over a phone call once before the incident. She called Ashiya on her father's mobile phone. There was no phone at Ashiya's house. She did not remember Nasim's mobile number. She has not given Nasim's phone number to anyone. It is true that when she came in the court today, she met Ashiya and on asking her, she told her that she did not Page 30 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined make any call to her at the time of the incident. It is true that she has not dictated in her statement recorded by police that, "she did not go to house of her daughter after she received a phone call regarding her daughter at Priyaben's house. She was trying to contact Nasim on his mobile phone, but he was not reachable and later, she received a news of her death.
11. The contents of the letter written by Dushyant Barot read thus:-
"Anku! I am not the kind of person you think I am. You do not know how much I love your mother, as you have not been with me for long. I also seek your forgiveness for what I have done to your mother. I hope you will forgive me. I need your support in what I am going to do; and while writing this letter, I feel that you all are here. I will start my job from the day I give this letter. I hope that you will cooperate with me and Anku and Karuna, both of you, would come here to live with me at the earliest by bringing the gold with you. Karuna! You start taking food and medicines if you swear to God that you love me. When I came to see you on the first day after coming out of jail, you did not drink water; and I realized how much trouble my Karuna was suffering. And when you are reading this letter, I have also stopped taking food. Besides, I live alone at home now. There is no one with me now; and therefore, I forget taking food. Until my Karuna takes food in front of me, I will not eat anything and will go to job. You will be responsible if anything happens to me because I will not take food until you start taking it. When you visit me on Tuesday after reading this letter, you will take medicine and start taking food in front of me. If possible, also bring Anku with you as I have not seen her and I miss her. I have been waiting to hear 'Papa' from her. I hope she will forgive me for my mistake. I guarantee that such thing would not happen again. Karuna! You start taking medicines by leaving your obstinacy. Have some mercy on your body! Anku! If you are reading this letter, please persuade your mother to start taking food and medicine. I will inform you the phone number of the place wherever I get a job. You can make phone calls to me there. Karuna! I come and sit in your house is solely because of your courage, otherwise, Page 31 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined no one can come and sit like this. I love you very much that I do not forget to meet you without caring for my life. Send me a message as soon as you come on Tuesday. I will come to you at the earliest, and I do not want to waste much time, so that I can spend more time with you, see you and talk to you. Therefore, message me as soon as you come.
As the sea waves splash the people, your memory makes me cry. You are my lifeline. I write this letter every night by remembering you. If you would not have come in my life, I would not have become such a lover; but you have improved my life, and for that reason, I want one thing from you that you start taking medicines. If you truly love me from your heart and wish to live with me, do as I say. I hope that you come to me as soon as possible and live with me. When I come home, there is no one to talk with. I do not have anyone except you and Anku. When I am alone at home, negative thoughts get hold of me. I become angry on myself that it was my mistake because of which we are living separately, but I guarantee that such thing will not happen again. You, please, do as I say and start taking medicines first. Karuna! You might get angry when I write a letter in such a manner, thinking that handwriting is bad and illegible. However, I miss you so much, and therefore, I write quickly. Forgive me and live with me. If somebody asks, tell him that Dushyant has a house in Narol and we are living there. And about your dignity, you will notice how everyone is treating you when you come. You tell us whatever they told you, so that they would seek your forgiveness. I miss you so much that my situation is worse than that it was in jail. I cannot live without seeing you, even when I am out from jail. I will wait for you near OPD in Civil Hospital at ten o'clock. Please, come there. Then, we will go to D-Cabin and talk at ease. I will introduce you to others also. Then, we will go somewhere. Please, take care of Anku too. Anku! Please, forgive me."
12. That the case is rest on the circumstantial evidence and it is well settled that the prosecution has to prove the complete chain of circumstances for proving the guilt of the accused involved in the alleged offence. The prosecution has examined 15 witnesses to establish the chain of circumstances and to prove the guilt of the Page 32 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined accused that the accused had killed his wife because he came to know that his wife having extra marital affairs with one Dushyant and, therefore, the dispute cropped up between the accused and the deceased and lastly when the deceased was admitted in the hospital for her mental illness, said Dushyant was visiting regularly and after discharging from the hospital, the dead body of the deceased was found in suspicion condition out of which the upper part i.e. neck of the body of the deceased was found from the Kakaria lake and lower part of the body of the deceased was found from the Vatva canal. The circumstances which referred and relied upon by the trial Court, while passing the impugned judgment and order of conviction, there was lacuna in the investigation and during the trial which was completely missing i.e. last seen together theory adhere by the prosecution is not proved by adducing cogent and material evidence before the trial Court. As per the case of the prosecution, the daughter of the deceased namely Ashia, who was working at the place of one Priyaben, made a telephone call to the mother of the deceased namely Vijiyaben Girishkumar, P.W.13 stating that the deceased was discharged from the hospital and they were going to their home, so she (mother of the deceased) not to come at the hospital. Surprisingly, the prosecution has not examined said Priyaben as witness nor any telephone details were collected and produced on record during the trial and even the call details of the present accused was also not collected. The another lacuna is that the concerned Investigating Officer has not recorded the statement of the doctor of the civil hospital, under whom, the deceased was admitted and on what time the deceased was discharged from the hospital and with whom and at which time, the deceased went to home, for which, nothing has been brought on record. The prosecution has not Page 33 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined recorded the statement of the daughter of the deceased and the appellant nor they have been examined by the prosecution as witnesses. The concerned Investigating Officer has also not investigated the fact that the premises was in the name of the appellant nor the statement of the owner of the premises has been recorded nor any rent receipt or any documentary evidence with regard to occupation of the premises has alleged to have been placed. Though there is nothing to show about the said facts, the trial Court framed the charge and recorded findings in para - 32 onward which suggests that the trial Court has failed in recording the reasons to that effect. It is relevant to note that the letter wrote by Dushyant Barot, from the jail, with whom the deceased remarried without getting the divorce from the present accused and the contents of the said letter was proved before the trial Court and was exhibited and in uncertain terms Dushyant Barot has written the said letter in threatening language that too for facing dire consequences to the deceased and accused. It appears that though the letter was exhibited, the trial Court has in fact recorded in the deposition of Dushyant Barot that he was visited the hospital in absence of the appellant and, therefore, mother of the deceased objected to visit the deceased and she asked Dushyant Barot that if he wanted to visit the hospital, he can come visit the hospital in presence of the accused. So all these facts suggest that the deceased was not having good relation with Dushyant Barot though she remarried with him and resided together once the appellant deserted the deceased with two daughters and he left the deceased at Ahmedabad. Looking to the evidence on record, it appears that the Investigating Officer has not collected any evidence with regard to the aforesaid aspect and the prosecution has failed to establish the case beyond reasonable doubt Page 34 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined against the accused. That the trial Court has come to the conclusion that as per the sereological report, the blood stain found from the weapon was matched with the blood group of the deceased. The blood sample collected from the place of occurrence and quilt in which the dead body was wrapped are also of the same group of the deceased and under such circumstances, the trial Court has come to the conclusion that the prosecution has proved the complete chain of circumstances which led only conclusion that the present accused was sole responsible for killing his wife as there was motive behind the same and in absence of the accused, the deceased having relation with Dushyant and got remarried with him and because of the same the quarrel took place between accused and the deceased, for which there was nothing on record. In fact the star witnesses are the daughters of the deceased and the appellant, however, the reason best known to the prosecution, the Investigating Officer has not recorded the statements of the daughters nor examined as witnesses. For proving the last seen together, the main witness Ashia, who made a telephone call at the place of Priyaben, the prosecution has miserable failed to establish this fact. From bare reading of the evidence, it appears that Dushyant Barot has motive to kill the deceased, however, Investigating Officer has not properly investigated the case nor collected any material. In the present case, the prosecution is unable to produce any details of the telephone call of the accused which goes to the root of the crime in question for which the accused was charged. As per the decision of the Hon'ble Supreme Court, the chain of evidence has to be shown so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The Page 35 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. The accused 'must be' and not merely 'may be' guilty before a Court can convict and there is a legal distinction between 'may be proved' and 'must be proved' is long and divides vague conjectures from sure conclusions. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused.
13. Having noted the principles governing a case based purely on circumstantial evidence, we now proceed to discuss the evidence led by the prosecution in order to bring home the charges against the accused-appellant. The prosecution portrayed the following circumstance in its endeavour to establish the charge of murder against the accused-appellant: -
(i) Motive, i.e., to say that Hamida Parween (deceased) and the accused-appellants were involved in an ongoing strife, wherein the accused-appellants were pressuring her to give away her remaining share in the property in question i.e., Holding No. 13. On the morning of 11th March, 1997, Hamida Parween(deceased) and accused-
appellants quarrelled with each other which fueled the accused- appellants with such animosity that they murdered her for usurping her property.
(ii) 'Last seen together' theory i.e., to say that Hamida Parween (deceased) and the accused-appellants were the only persons present Page 36 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined in Holding No. 13 when her sons, Md. Sahid Khan (PW3) and Md. Javed Khan left for the school. The accused-appellants absconded from Holding No. 13, after killing Hamida Parween and hiding her dead body inside the house and locking it up from the outside so as to conceal the evidence of the crime. 22. Applying the aforesaid principles to the case at hand, the prosecution would be required to establish that the accused-appellants and Hamida Parween (deceased) were present inside the house i.e., Holding No. 13 on the fateful morning, and to be specific during the time immediately preceding the incident.
14. The circumstance of last seen together is a very weak circumstance in the facts of the case. The circumstances brought on record are not conclusive in nature. The circumstances are not consistent only with the hypothesis of the guilt of the appellant.
15. We refer to the decision of the Hon'ble Supreme Court in the case of Ram Niwas Vs. State Of Haryana reported in (2022) 15 SCC 306, wherein the Hon'ble Apex Court has referred its decision in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 and thereafter again it is reiterated in the case Indrajit Das Vs. State of Tripura reported in AIR 2023 (SC) 1239. In view of the aforesaid decisions, we are of the opinion that the prosecution has to establish the guilty of the accused and the chain of circumstances beyond reasonable doubt, however, the same has not been done.
16. Moreover, we noticed that the trial Court failed to expound upon how the prosecution has succeeded in constructing an Page 37 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined unbroken chain of circumstances that irrefutably establishes the culpability of the accused to the exclusion of any other hypothesis as it was observed and discussed by the trial Court in para - 29 onward. It is also relevant to note that based upon the analysis on the evidence produced on the record by the prosecution, we are of the view that the chain of incriminating circumstances required to bring home the guilt of the accused was complete in all aspects. For above- mentioned aspects, the prosecution has not produced any circumstantial evidence nor the Investigating Officer has investigated on such aspect as mentioned hereinabove to prove the guilt of the accused by fulfilling the golden principles enunciated by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) and thus, we are unable to accept the contentions and arguments made by the learned Additional Public Prosecutor. The circumstances present before us, taken together establish conclusively only one hypothesis that being the guilt of the accused appellant is unable to establish.
17. That the deceased was the wife of the accused and in his absence, the deceased came into contact with one Dushyant Barot, P.W.8 and having relation and remarried with him and, therefore, the accused had a strong motive. Despite of that, the accused had not lodged any complaint / report with regard to missing of the deceased, which fact pointing against the accused and needle of suspicion pointed towards the house of the accused because the blood stain was found from the house of the accused and also from the quilt in which the dead body was wrapped. On search of the house of the accused, in presence of independent panchas, the Investigating Officer collected the blood sample and other articles. After making Page 38 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined search, the parts of the body were found from the Kakaria lake and Vatva canal and though the accused has not explained the circumstances during his statement under Section 313 of the Cr.P.C. and not rendered any explanation with regard to the articles found at the behest of the accused, the trial Court has considered the said aspect which led to only conclusion that the accused was solely responsible and guilty for the offence charged against him, but before coming to the conclusion, the trial Court must have to consider the aspect that the Investigating Officer has not properly investigated the case and not collected sufficient and relevant evidence and the material which has been referred and relied by the prosecution is sufficient or not. It appears that the trial Court has taken holistic view in considering the evidence of P.W.2, P.W.8, P.W.11 and P.W.13 and accused has not denied all the aforesaid circumstances which has been referred and relied by the trial Court during the statement under Section 313 is not a conclusive and there was serious lacuna noticed in the investigation. Therefore, we are of the opinion that the prosecution has not completed the chain of circumstances and established the case against the accused. It appears that the accused was convicted on the ground of suspicion and, therefore, we record our own conclusion in deciding the present appeal.
18. The appellant has raised an objection during the trial and in the statement under Section 313 of the Cr.P.C. that there was animus relationship between the deceased and the accused and also P.W.8 and P.W.13 having an animosity or animus relation against the accused and there is likelihood that the accused might be falsely implicated in the alleged offence as he was being husband of the deceased. We have discussed the strange relationship between the Page 39 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined accused and the deceased and then deceased and P.W.8 which fact raises serious doubt in the story put forward by the prosecution.
19. We are not impressed upon the evidence of the recovery of the weapons and the blood stain found from the so-called house of the accused as it was caused by the prosecution. All these cumulative constrain us to lead conclusion that there are gaping holes in the prosecution story leading to the irresistible conclusion that there is something more than what is missing in this case. The witness may lie but not the circumstances. Considering that principle, it is well established that the distinction between 'may be proved' and 'must be or should be proved' as held by the Hon'ble Apex Court in number of cases. The circumstances relied upon when stitches together do not lead to the sole hypothesis of the guilt of the accused and we do not find that the chain is of circumstances is so complete as not to leave any reasonable ground for the conclusion with the innocence of the accused.
20. Not only, is the test of Sharad Birdhichand Sarda (Supra) not satisfied, sustaining a conviction based on this sketchy and disjointed evidence would be disregarding the warning of Judge Barron Alderson in Reg vs. Hodge,1838 2 Lew 227 as reiterated in Hanumant Vs. State of Madhya Pradesh, 1952 AIR(SC) 343, about the caution to be exercised in cases based on circumstantial evidence:-
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such Page 40 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
21. On the available evidence, we are of the opinion that it will be extremely unsafe to sustain a conviction against the appellant. The accused having two minor daughters and he was in jail for a period of nine years and eight months. The prosecution has not established its case beyond reasonable doubt. Hence, we are constrained to come to the sole irresistible conclusion that the appellant is not guilty of the offences for which he has been charged.
22. It is necessary to the prosecution that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is primary principle that the accused must be and not merely may be proved guilty before the Court can convict the accused. There is not only a grammatical but it is a legal distinction between 'may be proved' and 'must be or should be proved'.
23. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt.
24. The Court has convicted the accused only on circumstances of recovery of weapon, conduct of the accused that he has not explained anything while recording the statement under Section 313 of the Page 41 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Cr.P.C.
25. It is pertinent to refer to the decisions of the Hon'ble Supreme Court in the case of (1) Raja Naykar Vs. State of Chhattisgarh, (2024) 3 SCC 481; (2) Darshan Singh Vs. State of Punjab, (2024) 3 SCC 164; (3) Navaneethakrishnan Vs. State by Inspector of Police, (2018) 16 SCC 161; (4) Ramanand alias nandlal Barti Vs. State of Uttar Pradesh, AIR 2022 SC 5273; (5) Abdul Nassar Vs. State of Kerala and another, AIR 2025 SC 691; (6) Nusrat Parween Vs. State of Jharkhand, AIR 2025 SC 105; (7) Arun Shankar Vs. State of Madhya Pradesh, AIR 2024 SC 1920; and (8) Randeep Singh @ Rana and another Vs. State of Haryana and others, 2024 (8) Supreme 729.
26. In the case of Raja Naykar (supra), the Hon'ble Supreme Court has held and observed in paras - 8, 9, 11, 20 and 21 as under:-
"8. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human Page 42 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined probabilities the act must have been done by the accused.
9. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
11. On a perusal of the judgment of the Trial Judge as well of the High Court, it would reveal that the main circumstance on which the High Court and the Trial Judge found the appellant guilty of the crime is the recovery of various articles at his instance. They have further found that the pieces of blanket recovered from the place of incident and the place where the dead body was subsequently taken for being burnt, were found to be identical/similar. The High Court has observed that specific questions were put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") regarding recovery of various articles at his instance and also regarding the FSL report, but he has failed to give an explanation with regard thereto.
20. As already discussed hereinabove, merely on the basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime. We find that the prosecution has utterly failed to do so.
21. Insofar as the finding of the High Court that the appellant has failed to give any explanation in his statement under Section 313 Cr. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. In any case, as held by this Court in the case of Sharad Birdhichand Sarda (supra), in a case based on circumstantial evidence, the nonexplanation or false explanation of the accused under Page 43 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined Section 313 Cr.P.C. cannot be used as an additional link to complete the chain of circumstances. It can only be used to fortify the conclusion of guilt already arrived at on the basis of other proven circumstances.
26.1 In the case of Darshan Singh (supra), the Hon'ble Supreme Court has held and observed in paras - 9, 17, 25, 27, 28, 34, 35 and 37 as under:-
"9. There is no eye-witness to the incident. The case of the prosecution rests on circumstantial evidence. The normal approach in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion, that within all human probability, the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. [See Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 ]
17. In this case, the presence was sought to be proved by the prosecution on the basis of the testimony of PW-3, PW- 4, PW-5 and the statements of the accused at the 313 stage. The Courts below had also relied on the testimony of PW 3 and PW 4 to conclude that the appellant was present in the house. Therefore, it becomes necessary to carefully evaluate this circumstance, given the consequences that flow from proof of this circumstance.
25. In the face of the above evidence on record, can it be said that the presence of the appellant and Rani Kaur in the appellants house in the intervening night of 18.05.99 and 19.05.99, has been firmly and cogently established? According to us, the answer must be in the negative. There are several omissions that have been brought out in the cross examination of PW-3 and PW-4, which seriously dent the credibility of their testimony.Page 44 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025
NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined
27. Of course, PW-3 claims to be an illiterate witness and therefore, her testimony must be interpreted in that light. We are cognizant that the appreciation of evidence led by such a witness has to be treated differently from other kinds of witnesses. It cannot be subjected to a hyper- technical inquiry and much emphasis ought not to be given to imprecise details that may have been brought out in the evidence. This Court has held that the evidence of a rustic/illiterate witness must not be disregarded if there were to be certain minor contradictions or inconsistencies in the deposition.
[1] State of U.P. Vs. Chhoteylal, AIR 2011 SC 697 ; Dimple Gupta (minor) Vs. Rajiv Gupta, AIR 2008 SC 239.
28. However, the testimony of PW-3 suffers not merely from technical imperfections, there are glaring omissions and improvements that have been brought out in the cross-examination, which cannot be attributed to the illiteracy of the individual deposition. If there were minor contradictions and inconsistencies, that could have been ignored since the recollection of exact details as to location and time can be attributed to the lack of literacy. However, such is not the case here. PW-3 had only heard from her husband that the appellant and Rani Kaur were seen together in the appellants house on 18.05.99. To that extent, it is merely hearsay. Moreover, PW-4 has omitted to state this fact to PW3 in his statement before the police. He has also omitted to state that he advised his wife (PW-
3) against going to the appellants house in the night since there may arise a quarrel between all of them. If these facts are ignored from consideration, we only wonder as to why PW-3 would visit the house of the appellant in the wee hours of the morning on 19.05.99. It seems quite unnatural for PW-3 to visit the house of the appellant at 430 am in the morning without any reason. If PW-3 was aware that the appellant and Rani Kaur were in an illicit relationship for a sufficiently long duration, there was no reason to suspect all of a sudden that the two of them would get together, administer poison and murder the deceased on 19.05.1999, which fact, prompted her to visit the house of the appellant at such odd hours in the morning. Both the Courts have failed to take notice of the several significant Page 45 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined omissions and improvements in the evidence of PW 3 and PW 4.
34. The case of the prosecution has, from the very start, been that the appellant was seen jointly along with Rani Kaur in the appellants house on 18.05.99 and they were seen leaving the house together on 19.05.99. They were both tried together on charges of having administered poison and killing the deceased on the intervening night of 18.05.99 & 19.05.99. Though the Trial Court has convicted both of them under Section 302, the High Court has extended the benefit of doubt to Rani Kaur and acquitted her of all criminal charges. According to the High Court, apart from the evidence of Melo Kaur PW3 and Gurmel Singh PW4, there is no other evidence to show that she was present in the house on the fateful night. However, even though it was the very same evidence that was sought to be used to prove the presence of the appellant in the house, the benefit of doubt has not been similarly extended to him. The High Court reasoned that the appellant, being the husband, it was only natural for him to be present in the house.
35. It is important to notice that the respondent-State has not challenged the acquittal of Rani Kaur before this Court. It has accepted the verdict and therefore, the acquittal has reached finality. The State cannot on the one hand accept the verdict of the Court that the presence of Rani Kaur along with the appellant is doubtful and at the same time, maintain its case that the two of them were jointly present, committed the offence together and escaped together.
37. Seen in this background, we need not go further and consider the evidence qua other circumstances sought to be proved by the prosecution since the failure to prove a single circumstance cogently can cause a snap in the chain of circumstances. There cannot be a gap in the chain of circumstances. When the conviction is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt. [See: Bhimsingh Vs. Page 46 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined State of Uttarakhand, (2015) 4 SCC 281.] 26.2 In the case of Abdul Nassar (supra), the Hon'ble Supreme Court has held and observed in paras - 13, 14 and 29 as under:-
"13. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the judgments of the trial Court and High Court as well as the evidence available on record.
14. Indisputably, the prosecution case rests on circumstantial evidence. The law with regard to a case based purely on circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda (supra), wherein this Court held thus:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up to date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129] :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they Page 47 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and Page 48 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
29. The Courts have undertaken an examination of the testimonies of the witnesses but has omitted to delineate the inferences derivable therefrom. Moreover, they failed to expound upon how the prosecution has succeeded in constructing an unbroken chain of circumstances that irrefutably establishes the culpability of the accused to the exclusion of any other hypothesis. 30. We deem it essential to enunciate the principles that courts must adhere to while appreciating and evaluating evidence in cases based on circumstantial evidence, as follows:
(i). The testimony of each prosecution and defence witness must be meticulously discussed and analysed. Each witness's evidence should be assessed in its entirety to ensure no material aspect is overlooked.
(ii). Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact. Thus, the reasonable inferences that can be drawn from the testimony of each witness must be explicitly delineated.
(iii). Each of the links of incriminating circumstantial evidence should be meticulously examined so as to find out if each one of the circumstances is proved individually and whether collectively taken, they forge an unbroken chain consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
(iv). The judgment must comprehensively elucidate the rationale for accepting or rejecting specific pieces of Page 49 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined evidence, demonstrating how the conclusion was logically derived from the evidence. It should explicitly articulate how each piece of evidence contributes to the overall narrative of guilt.
(v). The judgment must reflect that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis."
26.3 In the case of Nusrat Parween (supra), the Hon'ble Supreme Court has held and observed in paras 6 and 7 as under:-
"6. There is no dispute that the case of prosecution is based on purely circumstantial evidence in the form of motive and the theory of last seen together, since no witness claims to have seen the alleged incident wherein Hamida Parween was done to death. The fact that death of Hamida Parween was homicidal was duly proved by the Medical Officer(PW15) in his evidence. The Medical Officer(PW15) also proved the post mortem report Exhibit 3 wherein a large number of injuries were noted on the dead body of Hamida Parween and the cause of death was opined to be asphyxia owing to strangulation. Thus, there is no doubt on the aspect that the death of Hamida Parween was homicidal in nature.
7. It is a well-established principle of criminal jurisprudence that conviction on a charge of murder may be based purely on circumstantial evidence, provided that such evidence is deemed credible and trustworthy. In cases involving circumstantial evidence, it is crucial to ensure that the facts leading to the conclusion of guilt are fully established and that all the established facts point irrefutably to the accused person's guilt. The chain of incriminating circumstances must be conclusive and should exclude any hypothesis other than the guilt of the accused. In other words, from the chain of incriminating circumstances, no reasonable doubt can be entertained about the accused person's innocence, demonstrating that it was the accused and none other who committed the offence. The law with Page 50 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined regard to conviction based on circumstantial evidence has been crystalised by this Court in the case of Sharad Birdhichand Sharda vs. State of Maharashtra, (1984) 4 SCC 166, wherein it was held:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para 19, p. 807] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must Page 51 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined show that in all human probability the act must have been done by the accused. (emphasis supplied)."
26.4 In the case of Arun Shankar (supra), the Hon'ble Supreme Court has held and observed in para - 5 as under:-
"5) This case is based on circumstantial evidence. The law governing cases involving circumstantial evidence is no longer res integra. Paragraph 153 of the decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 lays down the well-
settled principles. Paragraph 153 reads thus:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established.
There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, Page 52 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (emphasis supplied) 26.5 In the case of Randeep Singh @ Rana and another (supra), the Hon'ble Supreme Court has held and observed in paras - 15 and 17 as under:-
"15. 15. Sections 25 to 27 of the Evidence Act read thus:
'25. Confession to police-officer not to be proved .- No confession made to a police-officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation.-In this section 'Magistrate' does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).
27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police- officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Page 53 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined
17. It is true that this is a case of a brutal murder. The brutality of the offence does not dispense with the legal requirement of proof beyond a reasonable doubt. In this case, there is no legal evidence to prove the involvement of the accused. The Courts can convict an accused only if his guilt is proved beyond a reasonable doubt on the basis of legally admissible evidence. There cannot be a moral conviction. We are tempted to quote what this Court observed in paragraph 24 of its decision in the case of Subhash Chand vs. State of Rajasthan , (2002) 1 SCC 702 It reads as follows:
'24. Thus, none of the pieces of evidence relied on as incriminating, by the trial court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal Dixit case [(1981) 2 SCC 35: 1981 SCC (Cri) 315: AIR 1981 SC 765] this Court cautioned - 'human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions' (SCC p. 44, para 33). This Court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict.' (emphasis added)
27. When the conviction is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt. We are of the opinion that the prosecution has failed to complete the chain of circumstances against the accused and the trial Court has committed an error of facts and law in passing the impugned judgment and order of conviction and Page 54 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025 NEUTRAL CITATION R/CR.A/2323/2008 JUDGMENT DATED: 28/03/2025 undefined sentence and, therefore, the impugned judgment and order deserves to be quashed and set aside and the appeal deserves to be allowed.
28. The appellant's guilt has not been established beyond a reasonable doubt. Accordingly, this appeal is allowed. The impugned judgment and order dated 10.07.2008 passed by the learned Fast Track Judge, Court No.5, City Session Court, Ahmedabad in Sessions Case No. 296 of 2007 is hereby quashed and set aside. If appellant is in prison, he shall be immediately set at liberty unless required in connection with any other offence. Bail bond shall stand cancelled.
Registry is directed to transmit back the record and proceedings of the case to the concerned trial Court forthwith.
(ILESH J. VORA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 55 of 55 Uploaded by V.R. PANCHAL(HC00171) on Fri Mar 28 2025 Downloaded on : Sat Mar 29 01:05:53 IST 2025