STATE OF GUJARAT vs BHARATBHAI @ BADO NATTHUBHAI PAMAR
- Court
- Gujarat High Court
R/CR.A/412/1998 JUDGMENT DATED: 30/10/2026
(GJHC240325531998)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 412 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
BHARATBHAI @ BADO NATTHUBHAI PAMAR & ORS.
==========================================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,4
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2,3,5
MR KAIVAN K PATEL(6338) for the Opponent(s)/Respondent(s) No. 2,3,5
==========================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 30/10/2026
JUDGMENT
(PER : HONOURABLE MR.JUSTICE MOOL CHAND TYAGI)
1. The present Appeal is filed by the Appellant – State of
Gujarat under the provisions of Section 378 of the Code of
Criminal Procedure, 1973 ( hereinafter referred to as Cr.P.C. )
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challenging the Judgment dated 05.03.1998 passed by the
learned Additional Principal Judge, Court No.2, Ahmedaba
City ( hereinafter be referred to as the Ld. Trial Court /
Ld.ASJ) in Sessions Case No.241 of 1997, whereby the
respondents herein were ordered to be acquitted of the
charges for the offences punishable under Sections 302 r/w
120(B), 34 and 114 of the Indian Penal Code,1860
(hereinafter referred to as “IPC”).
2. The facts and circumstances giving rise to filing of the
present appeal are as follows: The accused persons, between
the night of 16.07.1997 and 09:30 hours on 18.07.1997,
bearing a grudge over financial transactions relating to
gambling, assembled with the intention of killing the
deceased-Anjaji Mamtaji Marwadi. They quarreled with him in
the compound of Kankodiwala Compound situated on the bank
of the river Pai and inflicted injuries upon him by giving blows
with sticks and fists, thereby causing his death. Thereafter,
with a view to concealing their involvement in the crime, they
stripped the dead body of the deceased- Anjaji Mamtaji
Marwadi and threw it into the bushes near the river drain,
thereby attempting to destroy the evidence.
3. Accordingly, FIR being I.C.R.No. 118 of 1997 was lodged
at Dani-Limda Police Station, Ahmedabad and investigation
was carried out and ultimately, charge-sheet came to be filed
against the accused persons under Sections 302 r/w 120(B),
34 and 114 before the learned Metropolitan Magistrate, Court
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No.4, Ahmedabad. As the case was exclusively triable by the
Court of Sessions, learned Metropolitan Magistrate under
Section 209 of the Cr.P.C. committed the said case to the
Court of Sessions Court, Ahmedabad City, which came to be
numbered as Sessions Case No.412/1998.
4. On 08.12.1997, the learned Trial Court framed the
charges at Exh. 1 under Sections 302 r/w 120(B), 34 and 114
of the IPC. Since, the accused persons did not plead guilty and
claimed to be tried, they were tried for the said offences.
5. In order to bring the home the guilty of the accused, the
prosecution has led following oral and documentary
evidences:-
ORAL EVIDENCE
Sr.No.P.W.NO
WITNESS Exh.
.
1. 1. Deposition of Complainant – Natwarbhai
17
Prahladbhai Gehlot – Nephew of the deceased.
2. 2. Deposition of witness – Lilaben Mohanji Marwadi –
Sister of the deceased.
19
3. 3. Deposition of witness – Hemtaji Okhaji Marwadi 20
4. 4. Deposition of Panch witness – Rameshbhai Somaji
21
Chauhan
5. 5. Deposition of Panch witness – Dhanajibhai
Ambalal Thakor
23
6. 6. Deposition of Panch witness – Velaji Keshaji
24
Chauhan
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7. 7. Deposition of Panch witness- Bansilal Babulal
27
Pipraliya
8. 8. Deposition of Panch witness- Vasant Chhaganlal
28
Sargara
9. 9. Deposition of Panch witness- Pannalal Nathaji
29
Kusawada
10. 10. Deposition of Panch witness - Kanubhai Bhagubhai
30
Parmar
11. 11. Deposition of witness- Abdul Razak Mushabhai
32
Modan - Circle Inspector
12. 12. Deposition of witness – Dr. Chandrakant Babalal
34
Darji – Medical Officer – Ahmedabad Civil
Hospital.
13. 13. Deposition of Panch witness – Dalabhai Bhanabhai
37
Solanki
14. 14. Deposition of witness – Abudul Rauf Amar Arab –
38
Senior P.I. - Dani-Limda Police Station
DOCUMENTARY EVIDENCE
Sr.No. EXH Description
1. 10 Inquest Panchnama
2. 11 Panchnama of getting blood-sample of deceased
3. 12 Panchnama of body of the accused nos.2 & 3
4. 13 Panchnama of body of the accused no.4
5. 14 Copy of Departure Entry
6. 15 Receipt of F.S.L.
7. 16. Opinion of F.S.L. / Covering Letter
8. 18 Complaint
9. 22 Panchnama of Scene of Offence
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10. 33 Map of Scene of Offence
11. 35 P.M.Note
12. 36 Cause of Death Certificate
13. 39 Report of the offence being reported
14. 40 Panchnama of body of accused no.1
15. 15. Panchnama of muddamal stick shown by accused nos.2 & 3
16. 16. Panchnama of clothes of accused no.4 produced by
witness-Nasrulla
17. 17 Panchnama of clothes accused no.5
6. After recording all the evidence, statements of the
accused persons under Section 313 of Cr.P.C. were recorded
and all the incriminatory evidence were put to them. They
denied all the incriminatory evidences and took the plea that
they have been falsely implicated in the crime. Thereafter, the
case was fixed for the evidence of accused persons, but they
had not led any oral and/ or documentary evidence.
Thereafter, hearing the arguments on behalf of the
prosecution and the defence and having considered the
arguments and evaluating the oral as well as documentary
evidences, the Ld. ASJ acquitted the accused persons of all the
charges levelled against them by the Judgment dated
05.03.1998.
7. Being aggrieved by and dissatisfied with the judgment
dated 05.03.1998 passed by the learned Additional Principal
Judge, Court No.2, Ahmedaba City, the appellant-State has
preferred the present Criminal Appeal.
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8. Ms. Jirga Jhaveri, learned Additional Public Prosecutor
appearing for the appellant–State vehemently submitted that
the Division Bench of this Court, vide order dated 13.10.2015,
dismissed the appeal qua accused No. 1-Bharatbhai @ Bado
Nathhubhai Parmar and accused No. 4-Babubhai Devjibhai
Parmar, as they had died during the pendency of the appeal.
She further submitted that the appeal qua accused No. 5-
Abdulhamid Narullah Kureshi had also become infructuous, as
accused No.2 had died on 06.10.2022. In support of her
submission, she placed on record a report submitted by the
Police Sub-Inspector, Dani-Limda Police Station, Ahmedabad.
Therefore, the appeal now survives qua accused Nos.2 and 3.
9. It is submitted that the learned ASJ failed to properly
appreciate the oral as well as documentary evidence adduced
by the prosecution. The prosecution examined P.W.2-Lilaben
Mohanji Marwadi, sister of the deceased and P.W.3 -Hemtaji
Okhaji Marwadi, who proved on record that there was a
dispute between the deceased and the accused persons
regarding the distribution of gambling money. They deposed
that they had last seen the deceased in the company of the
accused persons when he was being taken away from his
house. It is further submitted that the accused persons failed
to offer any explanation as to when and under what
circumstances they had parted company with the deceased.
10. It is further submitted that P.W.12 - Dr. Chandrakant
Babalal Darji - Medical Officer at Ahmedabad Civil Hospital
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also proved that the injuries sustained by the deceased were
sufficient in the ordinary course of nature to cause his death.
He also proved the post-mortem note on record. It is
submitted that the Forensic Science Laboratory (F.S.L.)
report supports the prosecution's case, as the blood found at
the scene of the incident matched the blood found on the
clothes of the accused persons. Therefore, the learned
Additional Public Prosecutor submitted that, in view of the
aforesaid evidence, the prosecution had established a
complete chain of circumstances sufficient to convict the
accused persons. Accordingly, she contended that the findings
recorded by the learned ASJ are unsustainable and that the
judgment passed by the learned ASJ deserved to be reversed.
11. It appears from the record that the Rule was duly served
upon the accused persons. It further emerges from the record
that accused Nos.1, 4 and 5 had expired during the pendency
of the appeal. Accused Nos.2 and 3 were represented by
learned advocate. However, when the matter was called out,
the learned advocate appearing for respondent Nos. 2 and 3
chose not to remain present. Accordingly, the appeal was
heard in his absence.
12. We have heard the learned APP appearing for the
appellant - State and perused the material available on record.
Before proceeding further, it would be apposite to scrutinize
the oral as well as documentary evidence tendered by the
material prosecution before the learned ASJ, so as to decide
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as to whether the order of acquittal is sustainable or liable to
be set aside.
13. In order to bring home the guilt of the accused, the
prosecution has examined as many as 14 witnesses and has
also led 17 documentary evidence on record.
14. In order to appreciate the submissions of learned APP, it
would be apt to refer the evidence led by the prosecution on
record. The prosecution examined the complainant-
Natwarbhai Prahladbhai Gehlot, nephew of the deceased as
P.W.1 at Exh.17. He deposed that on 17.07.1997, at about
07:00 p.m., he went to the house of his uncle - deceased Anjaji
situated at Khodiyarnagar Chapra to meet him. However, his
uncle was not present there. He, therefore, went to the house
of his aunt (foi) - Lilaben, but she was also not present at
home. Her son - Gopal informed him that she had gone to
prepare food. Thereafter, he inquired with the wife of
Kanjibhai, who resided near his aunt’s house. She informed
him that she had seen his uncle there a short while earlier.
She further stated that on the previous day i.e. on 16.07.1997,
his uncle had been accompanied by Bharat Natthubhai,
Parsho, Paliyo and Hamid. Thereafter, he returned to his
home. On 18.07.1997, Hemtaji Maharaj came to his house
along with the police and informed him that the dead body of
his uncle was lying in a drainage pit in the riverbed situated
behind the Kankodivala compound. He, therefore, went to the
spot and found the dead body of his uncle lying naked in the
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drainage pit. He lodged a complaint with the police, which
was exhibited at Exh.18. In his cross-examination, he admitted
that on 16.07.1997, he had gone to the house of his deceased
uncle to meet him. He further admitted that the dead body of
his uncle was found approximately 400 metres away from the
residential area, in a pit situated 50 feet below ground level.
15. The prosecution examined Lilaben Mohanji Marwadi -
sister of the deceased as P.W.2 at Exh.19. She deposed that
on 16.07.1997, a Gujarat Bandh had been declared. At about
05:00 p.m., her brother came to her house. Thereafter,
Bharat, Hamid and two other boys came to her house and took
her brother with them. She further deposed that she had seen
Babu, Bharat and three other persons gambling with her
brother and quarrelling with him. Thereafter, her brother and
the other five persons went towards Bhangivas and she did
not see her brother thereafter. On the following day, when her
nephew-Natwarbhai came to her house, she was not present
there. On the third day, her neighbour informed her that the
dead body of her brother was lying in a drainage pit in the
riverbed situated behind the Kankodivala compound. She,
therefore, went to the spot and found her brother’s dead body
lying naked in the drainage pit. She also identified the
accused persons in the Court. In her cross-examination, she
admitted that her deceased brother had divorced his wife. She
denied the suggestion that she had stated before the police
that a quarrel had taken place over gambling money that the
dispute was subsequently settled and that her brother had
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asked her to go home, whereupon she returned home. She
further admitted that her brother was engaged in the sale and
purchase of liquor. She also admitted that the police had
merely asked her whether deceased Anjaji was her brother
and that, apart from this, the police had not asked her
anything else.
16. The prosecution examined Hemtaji Okhaji Marwadi as
P.W.3 at Exh.20. He deposed that four to five persons were
quarrelling near the house of deceased Anjaji. Those persons
were Bharat, Paso, Paliyo and Hamid. He and some other
persons attempted to intervene and settle the dispute.
Thereafter, he left the place. He further deposed that he had
seen Bharat, Paliyo and others accompanying the deceased.
On the following day, the dead body of deceased-Anjaji was
found behind the Kankodina Factory, on the bank of the river.
In his cross-examination, he admitted that he had seen the
dead body of the deceased on 18.07.1997.
17. The prosecution examined the panch witness -
Rameshbhai Somaji Chauhan as P.W.4 at Exh.21. He proved
the panchnama relating to the clothes of the deceased i.e.
pant, shirt and a pair of slippers, which were seized under the
scene of offence panchnama produced at Exh.22.
18. The prosecution examined panch-witness Dhanajibhai
Ambalal Thakor as P.W.5 at Exh.23. He was a panch witness
to the inquest panchnama, which was produced at Exh.10.
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However, he turned hostile and did not support the
prosecution’s case. Therefore, no further discussion of his
deposition is necessary.
19. The prosecution examined panch-witness Velaji Keshaji
Chauhan, as P.W.6 at Exh.24. He was a panch witness to the
recovery/discovery panchnama relating to the sticks
discovered at the instance of accused Bharat. In his cross-
examination, he admitted that the police had obtained his
signature on a blank paper.
20. The prosecution examined panch-witness Bansilal
Babulal Pipraliya, as P.W.7 at Exh.27. He was a panch witness
to the recovery/discovery panchnama relating to the sticks
allegedly recovered at the instance of accused Parshottambhai
@ Pasho Alamjibhai Shrimali and Pravinbhai @ Paliyo
Mangalbhai Senma. However, he turned hostile and did not
support the prosecution’s case. Therefore, no further
discussion of his deposition is necessary.
21. The prosecution examined Panch-witness Vasant
Chhaganlal Sargara as P.W.8 at Exh.28. He was a panch
witness to the recovery of the stick allegedly recovered at the
instance of accused Bharat. However, he turned hostile and
did not support the prosecution’s case. Therefore, no further
discussion of his deposition is necessary.
22. The prosecution examined Panch-witness Pannalal
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Nathaji Kusawadaas P.W.9 at Exh.29. He was a panch witness
to the seizure panchnama relating to the clothes. However, he
turned hostile and did not support the prosecution’s case.
Therefore, no further discussion of his deposition is necessary.
23. The prosecution examined Panch-witness Kanubhai
Bhagubhai Parmar as P.W.10 at Exh.30. He was a panch
witness to the recovery/discovery panchnama relating to the
clothes and the stick allegedly recovered at the instance of
accused Abdul Hamid. However, he turned hostile and did not
support the prosecution’s case. Therefore, no further
discussion of his deposition is necessary.
24. The prosecution examined Abdul Razak Mushabhai
Modan, who deposed that he had prepared the site map of the
place of incident. He proved the site map on record at Exh.33.
25. The prosecution examined Dr. Chandrakant Babalal
Darji as P.W.12 at Exh.34. He deposed that he had conducted
the post-mortem examination of the deceased on 18.07.1997.
During the post-mortem examination, he found the following
injuries on the body of the deceased:
“
I. Black contusion like skin over the nostrils size roughly about
1 x 1/2 cm.
II. Black contsion like skin over the mouth upper part power lip
size up to 1x1 cm (Rt.) thigh, black contusion like skin upper
part at sup iliac spine 5 x 2 cm.
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III. Contusion like black colour skin (lt) knee 5 x 2 cm.
IV.Contusion black colour skin 3x2 cm lower part (lt) thigh,
lateral lower part contusion (lt) thigh upper part 2x1 cm,
contusion over (Rt) thigh lateral thigh each 4x2 cm, contusion
lower thigh 6x1 cm Medial side (lt) and contusion lower thigh
5x1 cm.
V. Contusion over (Rt) shoulder 7x4 cm, contusion over (Rt)
shoulder back 7x4, Contusion upper chest near nipple (Rt)
10x5 cm (lt) hand forearms near wrist – contusion 4x3 cm.
Contusion over (Rt) & (lt) abdomen 4 (four) each 3x2 cm.
Contusion over (Rt) wrist 4x3 cm front part (lt) front
forehead area contusion above eyebrow 5x4 cm. The skin of
all contusion looks blackish colour @ some reddish colour
seen inside size is very difficult to measured it is roughly. “
He further proved that all the injuries were anti-
mortem. In cross-examination, he admitted taht the injuries
sustained on legs were not sufficient to cause the death of the
person.
26. The prosecution examined Panch-witness Dalabhai
Bhanabhai Solanki as P.W.13 at Exh.37. He is a panch witness
to the recovery panchnama relating to the clothes and the
stick allegedly recovered at the instance of accused Abdul
Hamid. However, he turned hostile and did not support the
prosecution’s case. Therefore, no further discussion of his
deposition is necessary.
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27. The prosecution examined Abdul Rauf Amar Arab as
P.W.14 at Exh.38. He was the Investigating Officer, who
deposed regarding the manner in which the evidence was
collected during the investigation and the filing of the charge-
sheet.
28. From perusal of the ocular as well as documentary
evidence available on record, it emerges that the case of the
prosecution rests primarily upon the circumstantial evidence.
Before appreciating the ocular evidence, it would be apposite
to narrate the law regarding the appreciation of ocular
evidence. In the case of Balu Sudam Khalde v. State of
Maharashtra reported in 2023 SCC OnLine SC 355, wherein
the principles of appreciating the ocular evidence have been
summarized. The same is reproduced herein under for ready
reference:-
APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence in
a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
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general tenor of the evidence given by the
witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of
belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and
unless there are reasons weighty and formidable
it would not be proper to reject the evidence on
the ground of minor variations or infirmities in
the matter of trivial details.
III. When eye-witness is examined at length it is
quite possible for him to make some
discrepancies. But courts should bear in mind
that it is only when discrepancies in the evidence
of a witness are so incompatible with the
credibility of his version that the court is justified
in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context
here or there from the evidence, attaching
importance to some technical error committed by
the investigating officer not going to the root of
the matter would not ordinarily permit rejection
of the evidence as a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses
or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.
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VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties
therefore cannot be expected to be attuned to
absorb the details.
VIII. The powers of observation differ from person
to person. What one may notice, another may not.
An object or movement might emboss its image
on one person's mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and
reproduce the very words used by them or heard
by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to exact time of an incident, or the
time duration of an
occurrence, usually, people make their estimates
by guess work on the spur of the moment at the
time of interrogation. And one cannot expect
people to make very precise or reliable estimates
in such matters. Again, it depends on the time-
sense of individuals which varies from person to
person.
XI. Ordinarily a witness cannot be expected to
recall accurately the
sequence of events which take place in rapid
succession or in a short time span. A witness is
liable to get confused, or mixed up when
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interrogated later on.
XII. A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the
piercing cross examination by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from
imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so
operates on account of the fear of looking foolish
or being disbelieved though the witness is giving
a truthful and honest account of the occurrence
witnessed by him.
XIII. A former statement though seemingly
inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement has
the potency to discredit the later statement, even
if the later statement is at variance with the
former to some extent it would not be helpful to
contradict that witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753)
Leela Ram v. State of Haryana AIR 1995 SC 3717
and Tahsildar Singh v. State of UP (AIR 1959 SC
1012)]”
29. Now, in light of the aforesaid principles, the evidence on
record and the contentions raised by the learned APP are
required to be scrutinized. It emerges from the record that
the prosecution’s case is entirely based on circumstantial
evidence, as there is no direct evidence connecting the
accused persons with the commission of the offence. In
particular, the prosecution relies upon the evidence of last
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seen together. A scrutiny of the oral testimony of P.W.1
recorded at Exh.17 reveals that he lodged the complaint.
However, both his complaint and his deposition, insofar as
they relate to the deceased being last seen in the company of
the accused persons are based on hearsay evidence, as he was
informed by the wife of Kanjibhai that she had seen his uncle
in the company of the accused persons. It is pertinent to note
that the wife of Kanjibhai was not examined by the
prosecution. His deposition regarding the discovery of the
dead body on 18.07.1997 is, however, relevant. It further
emerges from his testimony that he had visited the house of
his deceased-uncle on 17.07.1997 at about 07:00 p.m. His
uncle had been missing since 16.07.1997 and his dead body
was found on 18.07.1997.
30. P..W.2 - Lilaben Mohanji Marwadi - sister of the
deceased, also deposed that she had seen her deceased
brother in the company of the accused persons at about 05:00
p.m. on 16.07.1997, whereas the dead body was found on
18.07.1997. The same fact also emerges from the deposition
of P.W.3. Thus, from the depositions of P.W.1, P.W.2 and
P.W.3, it emerges that the deceased was allegedly last seen in
the company of the accused persons on the evening of
16.07.1997, while his dead body was discovered on
18.07.1997, after a gap of approximately two days.
31. It emerges from the record that the panch witnesses to
the recovery of muddamal articles including the sticks and
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clothes, turned hostile and did not support the prosecution’s
case. Further, all the panch witnesses to the seizure of clothes
also turned hostile and did not support the prosecution’s case.
P.W.12, who conducted the post-mortem examination, also
deposed that the dead body was found in a decomposed
condition. P.W.14 - Investigating Officer, admitted in his
deposition that P.W.2 had stated before the police that,
following a quarrel over the distribution of gambling money,
the dispute was settled, after which her brother went home
and she also returned to her home.
32. The aforementioned facts cast doubt on the version of
P.W.2. It also emerges from the record that, after a quarrel,
the accused persons had assaulted the deceased, who
thereafter returned to his home. Therefore, the prosecution’s
version that the deceased was last seen in the company of the
accused persons is rendered doubtful. Thus, even the theory
of last seen together has not been established beyond
reasonable doubt. The serological report on record indicates
that the blood found at the place of the incident and the
bloodstains on the clothes of the deceased matched the blood
group of the deceased. However, this circumstance, by itself,
is insufficient to establish the involvement of the accused
persons in the commission of the offence unless the
prosecution establishes the necessary link connecting them
with the crime. The prosecution has also failed to establish the
recovery of the sticks allegedly used in the commission of the
offence as all the panch witnesses to the recovery
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panchnamas turned hostile and did not support the
prosecution’s case. The deposition of the Investigating Officer
also does not lend sufficient support to the prosecution’s
version in this regard, as he failed to establish the relevant
panchnama beyond reasonable doubt.
33. It also emerges from the record that there was a
considerable time gap between the deceased being last seen
in the company of the accused persons and the discovery of
his dead body. The prosecution has failed to establish that
during the intervening period, it was reasonably impossible
for any person other than the accused persons to have
committed the offence. Further, the prosecution has failed to
establish the other corroborative circumstances including the
motive for the commission of the offence, the recovery of the
weapon and other material articles, and the forensic evidence
necessary to connect the accused persons with the
commission of the offence.
34. The Hon’ble Apex Court, in case of Bodhraj @ Bodha &
Ors. Versus State of Jammu & Kashmir reported in (2002) 8
SCC 45, in paragraph no.31, observed as under:-
“31. The last-seen theory comes into play where the time-
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other
than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively
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establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous to
come to a conclusion of guilt in those cases. In this case
there is positive evidence that the deceased, A-1 and A-2
were seen together by witnesses i.e. PWs 14, 15 and 18; in
addition to the evidence of PWs 1 and 2.”
35. Further, the Hon’ble Apex Court, in case of State of
U.P. versus Satish reported in (2005) 3 SCC 114, in
paragraph no.22, observed as under:-
“22. The last-seen theory comes into play where the time-
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other
than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous to
come to a conclusion of guilt in those cases. In this case
there is positive evidence that the deceased and the
accused were seen together by witnesses PWs 3 and 5, in
addition to the evidence of PW 2.”
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36. The Hon’ble Apex Court, in case of State of Goa versus
Sanjay Thakran & Anr. reported in (2007) 3 SCC 755, in
paragraph no.34, observed as under:-
“34. From the principle laid down by this Court, the
circumstance of last seen together would normally be taken
into consideration for finding the accused guilty of the
offence charged with when it is established by the
prosecution that the time gap between the point of time
when the accused and the deceased were found together
alive and when the deceased was found dead is so small
that possibility of any other person being with the deceased
could completely be ruled out. The time gap between the
accused persons seen in the company of the deceased and
the detection of the crime would be a material consideration
for appreciation of the evidence and placing reliance on it
as a circumstance against the accused. But, in all cases, it
cannot be said that the evidence of last seen together is to
be rejected merely because the time gap between the
accused persons and the deceased last seen together and
the crime coming to light is after (sic of) a considerable long
duration. There can be no fixed or straitjacket formula for
the duration of time gap in this regard and it would depend
upon the evidence led by the prosecution to remove the
possibility of any other person meeting the deceased in the
intervening period, that is to say, if the prosecution is able
to lead such an evidence that likelihood of any person other
than the accused, being the author of the crime, becomes
impossible, then the evidence of circumstance of last seen
together, although there is long duration of time, can be
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considered as one of the circumstances in the chain of
circumstances to prove the guilt against such accused
persons. Hence, if the prosecution proves that in the light of
the facts and circumstances of the case, there was no
possibility of any other person meeting or approaching the
deceased at the place of incident or before the commission
of the crime, in the intervening period, the proof of last seen
together would be relevant evidence. For instance, if it can
be demonstrated by showing that the accused persons were
in exclusive possession of the place where the incident
occurred or where they were last seen together with the
deceased, and there was no possibility of any intrusion to
that place by any third party, then a relatively wider time
gap would not affect the prosecution case.”
37. Further, the Hon’ble Apex Court, in case of Ramreddy
Rajesh Khanna Reddy & Anr. Versus State of A.P. reported
in (2006) 10 SCC 172, , in paragraph nos.26 & 27,
observed as under:-
“26. It is now well settled that with a view to base a
conviction on circumstantial evidence, the prosecution must
establish all the pieces of incriminating circumstances by
reliable and clinching evidence and the circumstances so
proved must form such a chain of events as would permit no
conclusion other than one of guilt of the accused. The
circumstances cannot be on any other hypothesis. It is also
well settled that suspicion, however grave it may be, cannot
be a substitute for a proof and the courts shall take utmost
precaution in finding an accused guilty only on the basis of
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the circumstantial evidence. (See Anil Kumar Singh v. State
of Bihar [(2003) 9 SCC 67 : 2004 SCC (Cri) 1167] and
Reddy Sampath Kumar v. State of A.P. [(2005) 7 SCC 603 :
2005 SCC (Cri) 1710] )
27. The last-seen theory, furthermore, comes into play
where the time gap between the point of time when the
accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime
becomes impossible. Even in such a case the courts should
look for some corroboration.”
38. The Hon’ble Apex Court, in case of Anjan Kumar
Sarma & Ors. Versus State of Assam reported in (2017) 14
SCC 359, in paragraph no.24, observed as under:-
“24. As we have held that the other circumstances relied
upon by the prosecution are not proved and that the
circumstances of last seen together along with the
absence of satisfactory explanation are not sufficient for
convicting the accused. Therefore the findings recorded in
the above judgment are not applicable to the facts of this
case.”
39. Thus, in light of aforesaid judgments, in case of Last
Seen Together Theory, the prosecution has to prove that
time gap between last seen together and the death of the
deceased must be so small that the possibility of any person
other than the accused persons being the author of the
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crime become relevant. In present case, the deceased was
allegedly seen in the company of hte accused person in the
evening of 16.07.1997 while the dead-body of the deceased
was recovered on 18.07.1997. Thus, in light of the aforesaid
judgments, the evidence of last seen together is not
sufficient to convict the accused persons.
40. In case of circumstantial evidence, Sir Alfred Wills in his
admirable book 'Wills' Circumstantial Evidence (Chapter VI),
lays down the following rules specially to be observed in the
case of Circumstantial evidence:
(I) the facts alleged as the basis of any legal inference must
be clearly proved and beyond reasonable doubt connected
with the factum probandum;
(II) The burden of proof is always on the party who asserts the
existence of any fact, which infers legal accountability;
(III) In all cases, whether of direct or circumstantial evidence
the best evidence must be adduced which the nature of the
case admits;
(IV) In order to justify the inference of guilt, the inculpatory
facts must be incompatible with the innocence of the accused
and incapable of explanation, upon any other reasonable
hypothesis than that of his guilt; and
(V) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted.
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41. At this juncture, it would be profitable to refer the
judgment of the Hon'ble Supreme Court in the case of
Hanumant Govind Nargundkar versus State of Madhya
Pradesh, reported in AIR 1952 SC 343, wherein the Apex
Court held as under:
"10. 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
conclusive nature and tendency and they 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."
42. Similarly, in another case titled as Dr. Sunil Clifford
Daniel-versus State of Punjab (Criminal Appeal No. 2001 of
2010 decided on 14.09.2012), the Hon'ble Apex Court held as
under:
"17. In Sharad Birdhichand Sarda Vs. State of Maharastra
AIR 1984 SC 1622 , it was held by this court that, the onus is on
the prosecution to prove, that chain is complete and that falsity
or untenability of the defence set up by the accused, cannot be
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made the basis for ignoring any serious infirmity or lacuna in the
case of the prosecution. The Court then proceeded to indicate the
conditions which must be fully established before a conviction
can be made on the basis of circumstantial evidence. These are:
(1). the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned 'must' or 'should' and not 'may be 'established;
(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 conclusion consistent with
the innocence of the accused and must show that in all
human probability that the act must have been done by the
accused ".
43. Thus, in the light of aforesaid authoratative
pronouncement, in order to bring home the guilt of accused
persons, the prosecution has to prove the complete unbroken
chain of the circumstantial evidence. In the present case, the
prosecution has miserably failed to establish the complete
unbroken chain of circumstantial evidence. There is a huge
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gap of time between the recovery of dead-body and the
deceased was lastly seen in the company of accused. Recovery
of articles were also not proved, as panchas turned hostile.
Complaint was lodged on hear-say. P.W.2 admitted that after
quarrel, the deceased departed from the company of hte
accused persons. Thus, the prosecution could not prove the
guilt of the accused persons beyond reasonable doubt.
44. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
45. Further, if two reasonable conclusions are possible on
the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the
trial Court. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
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illegality and the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether the accused are connected with the commission
of the crime with which he is charged.
46. In the instance case, learned APP failed to point out any
cogent and incriminating evidence against the accused
persons, which may connect the accused persons with the
commission of the offence beyond reasonable doubt. At this
stage, it would be profitable to refer to the judgment of Apex
Court in the case of Chandrappa & Ors. Vs. State of Karnataka
reported in 2007 (4) SCC 415. The relevant observations
made in the said judgment are as under:-
“….. (1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded; (2) The Code of Criminal
Procedure , 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate
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Court on the evidence before it may reach its own
conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds', 'very
strong circumstances', 'distorted conclusions', 'glaring
mistakes', etc. are not intended to curtail extensive
powers of an appellate Court in an appeal against
acquittal. Such phraseologies are more in the nature of
'flourishes of language' to emphasize the reluctance of an
appellate Court to interfere with acquittal than to curtail
the power of the Court to review the evidence and to
come to its own conclusion.
(4) An appellate Court, however, must bear in mind that
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial
court.”
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47. Applying the aforesaid principle as laid down by the
Apex Court in the case of Chandrappa (supra), it is apparent
on record that no credible evidence had been produced by the
prosecution, which may connect the accused persons in the
alleged crime. The prosecution has miserably failed to prove
the guilt of the accused persons beyond reasonable doubt.
Thus, the Trial Court has not committed any error in
appreciating the evidence on record and in acquitting the
accused persons from the challenges levelled against them.
48. In these facts and circumstances, we are of the
considered opinion that the learned Trial Judge committed no
error in passing the impugned judgment and order. Hence,
the present appeal deserves to be dismissed.
49. In the result, the appeal fails and is dismissed. The
judgment and order of the Trial Court dated 05.03.1998
stands confirmed. Bail and bail bonds of the accused, if any,
stands discharged. R & P be sent back to the concerned Trial
Court, forthwith. No order as to costs.
(HEMANT M. PRACHCHHAK,J)
(MOOL CHAND TYAGI, J)
GIRISH
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