Holding

The appellate court held that the circumstantial evidence established the accused’s guilt beyond reasonable doubt and upheld the conviction.

Summary

Shamji @ Sunil @ Dakudo was convicted of double murder under IPC sections 302 and 201 for allegedly mixing sodium nitrate into fruit beer and offering it to two friends, Manish Makwana and Kaushal Parekh, who died of poisoning. The prosecution relied on circumstantial evidence, including the victim’s statements, the accused’s motive of revenge, purchase of the poison from his employer’s factory, purchase of the fruit beer, and the testimony of a key eyewitness who saw the victims enter the accused’s house. The defence argued that the delay in filing the FIR, lack of call‑detail records, and questions about the accused’s identity created reasonable doubt. The High Court held that the chain of circumstances was complete, the eyewitness testimony reliable, and the motive established, thereby satisfying the test for conviction on circumstantial evidence. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

The prosecution must prove the accused’s guilt beyond reasonable doubt solely on circumstantial evidence.
Whether the delay in lodging the FIR and the absence of call‑detail records undermine the prosecution’s case.
Whether the accused possessed the poison and had the opportunity to administer it.
Whether the identification of the accused as ‘Shamji @ Sunil @ Dakudo’ is reliable.
Whether a motive for the murders was sufficiently established.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 313
Indian Penal Code, 1860s. 201, s. 302

Subjects

double murderpoisoningcircumstantial evidencedelay in FIRcall detail recordsidentification parademotiveIPC 302IPC 201appeal against conviction

Judgment

R/CR.A/1597/2013 JUDGMENT DATED: 20/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1597 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================

Approved for Reporting Yes No

==========================================================
SHAMJI @ SUNIL @ DAKUDO S/O KALUBHAI MER
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR P P MAJMUDAR(5284) for the Appellant1
MR RONAK RAVAL APP for the Respondent
==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 20/02/2026

ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. This conviction appeal is directed against the judgment and order
of conviction dated 27.08.2013, passed by the learned Additional
Sessions Judge, Jetpur at Rajkot, in connection with Sessions Case
No. 64 of 2011, by which, the sole accused Samji @ Sunil @
Dakudo Kalubhai was convicted under Sections 302 of Indian
Penal Code and sentenced to suffer life imprisonment and fine
amount of Rs.1000/- and in default in payment of fine, to suffer
simple imprisonment of 3 months and also convicted and sentenced

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under Section 201 of the Indian Penal Code and is directed to
suffer 2 years imprisonment with Rs.300/- fine and in default
thereof, to suffer 7 days simple imprisonment.

2. The case of the prosecution, leading to conviction of the appellant
accused is as follows:

2.1 This is a case of double murder. The names of deceased are Manish
Babubhai Makwana and Kaushal Rasikbhai Parekh. The deceased
and the appellant accused are resident of village: Jetpur at Rajkot
and before the incident, they were close friends. The incident of
murder was being occurred on 15.05.2011 in the noon hours at
Jetpur. Before the incident, the appellant accused was having
suspicion that his wife had an affair with deceased Manish
Babubhai and on that count, there was a quarrel between them. In
order to take revenge of the said relationship, the appellant accused
invited the deceased Manish Babubhai and Kaushal Rasikbhai for
having cold drinks at his home. The invitation was received on the
mobile of deceased Kaushal and at that time, the deceased Kaushal
Parekh and deceased Manish Makwana along with other two friends
namely Paresh Chandubhai @ Hakli and Manish @ Karabhai were
assembled near the temple of the village. Both the deceased went to
the house of the accused appellant. The appellant accused offered
the fruit beer to both the deceased. In the fruit beer, the appellant
accused had mixed the poisonous substance (Sodium Nitrite). Both
the deceased after drinking the poisonous fruit beer left the house of
the appellant accused and came at the temple place. After sometime,
both the deceased went into semi unconscious state of mind. The

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witness Paresh @ Hakli noticed them and accordingly, they were
taken to the private Hospital at Village: Jetpur and before treatment
could be administered to them, they passed away.

2.2 On the basis of registration of accidental death, the Jetpur Police
sent the dead body for postmortem. The cause of death was due to
cardio respiratory failure due to injection of poison, which later on
identified as Sodium Nitrite.

2.3 The FIR came to be filed by the brother of the deceased Kaushal
Rasikbhai Parikh on 20.05.2011, inter-alia alleging that, after the
sad demise of his brother, they were in trauma, and thereafter, the
friend of deceased Kaushal told and informed that, both the
deceased were invited by the appellant accused for taking cold
drinks at his home and on account of his repeated request on the
mobile phone, both the deceased agreed to go at the home of the
appellant and after sometime, both the deceased found in the semi
unconscious state of mind, allegedly, lying on the bench of temple.
In short, the complainant alleged in the complaint that both the
deceased died because of administration of the poison by the
appellant in the fruit beer, which they had consumed at the instance
of the appellant and the motive behind administration of the poison
was to take revenge against the deceased Manish, because he had an
affair with the wife of the appellant.

2.4 On registration of the offence, the appellant accused came to be
arrested on 21.05.2011 and during his remand period, by way of
demonstration and reconstruction panchnama, voluntarily disclosed

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that how he managed the poison Sodium Nitrate and administered it
in the fruit beer. The IO, during the course of investigation,
recorded the statements of witnesses, collected the necessary
evidence with regard to purchase of fruit beer and poison Sodium
Nitrate to the appellant accused and sent the seized articles to the
FSL for chemical analysis and after due investigation, found
sufficient evidence against the appellant for the offence of double
murder and causing disappearance of the evidence followed by
filing of the chargesheet before the Jurisdictional Magistrate, who
committed the case to the Court of Sessions at Jetpur. The Trial
Court framed the charges, which the appellant accused denied the
charges and claimed to be tried.

3. The prosecution, in order to examine the case against the accused,
examined as many as 21 witnesses and exhibited 29 documents, as
per the below mentioned tabular.

Oral Evidence :

PW 1 – Exh.10 Praveenbhai Jayrambhai Solanki, panch witness
PW 2 – Exh.12 Nareshbhai Ratibhai Chouhan, panch witness
PW 3 – Exh.16 Henasbhai Bhupatbhai Vaghela, panch witness
PW 4 – Exh.18 Kamleshbhai Rameshbhai Bheda, panch witness
PW 5 – Exh.20 Samerbhai Sitarbhai Tarkehsha, panch witness
PW 6 – Exh.21 Manish@ lalo Rasikbhai Parekh, complainant
PW 7 – Exh.24 Sikandarbhai Kadarbhai Vahanvati
PW 8 – Exh.27 Maheshbhai Vitthalbhai Vanjani
PW 9 – Exh.28 Jayanti@ Jitesh Babubhai Makwana
PW 10 – Exh.30 Paresh@ Hakli Chandubhai Gajera
PW 11 – Exh.32 Kasambhai Mamadbhai Shama
PW 12 – Exh.34 Ajitbhai Karimbhai Parmar
PW 13 – Exh.36 Dr. Sanjaykumar Raghunandanprasad Sinha

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PW 14 – Exh.39 Bharakumar Mohanbhai Khanpara
PW 15 – Exh.42 Kevalbhai Ashokbhai Jaiswal
PW 16 – Exh.44 Naresh@ Papu Govindbhai Ghangha
PW 17 – Exh.47 Ramjibhai Shamatbhai Bagda
PW 18 – Exh.48 Ashokbhai Gajjananbhai Trivedi
PW 19 – Exh.51 Anirudhsinh Juvansinh Jadeja, IO
PW 20 – Exh.67 Ramagori Purshottambhai Rajguru, PSO
PW 21 – Exh.70 Balwantbhai Prabhatbhai Sonara, IO

Documentary Evidence :

Exh.11 Inquest panchnama of deceased Manishbhai
Exh.13 Inquest panchnama of deceased Kaushalbhai
Exh.17 Panchnama of place of offence
Exh.19 Panchnama of place of offence
Exh.22 Complaint
Exh.23 Arrest panchnama
Exh.25 Demonstration panchnama
Exh.33 Discovery panchnama
Exh.37 Manishbhai PM report
Exh.38 Kaushalbhai PM report
Exh.40 Police yadi for map of place of offence
Exh.41 Map of place of offence
Exh.43 Signed papers by Ketan Ashokbhai Jaiswal
Exh.45 Bill of Sodium Nitrate from Pradeep Chemical
Exh.46 Attendance sheet of workers in factory
Exh.48 Letter by complainant
Exh.50 Yadi for registration of offence
Exh.52 Copy from register of accidental death no. 28/11
Exh.53 Copy from register of accidental death no.29/11
Exh.54-55 Order for handing over investigation to head constable
R.S. Bagda
Exh.56 Order for handing over investigation to PI A.V. Jadeja
Exh.57 Letter to Deputy director, Scientific laboratory to
inspect mudammal articles
Exh.58 Letter to Deputy director, Scientific laboratory to
inspect mudammal articles

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Exh.59 Letter to Deputy director, Scientific laboratory to
inspect mudammal articles
Exh.60 Receipt of articles by FSL
Exh.61 Forwarding letter
Exh.62 Record of test conducted by investigating mobile van,
FSL
Exh.68 Original FIR
Exh.69 Station diary copy

4. After closure of the prosecution evidence, the appellant accused
was questioned under Section 313 Cr.P.C., to which, he stated that,
he is innocent and his name is not ‘Dakudo’ and he is not known as
‘Dakudo’. He is not working in the factory of processing of
printing Sari and he does not know the deceased Manish and
Kaushal and at the relevant time, he was not having a mobile phone
and he did not have invited both the deceased at his home by
calling them on the mobile of Kaushal. The accused lastly denied
the allegation of illegal relation of his wife with Manish.

5. Though opportunity was extended, no evidence was tendered from
the side of the appellant accused.

Trial Court’s finding:

6. The learned Trial Court, after considering the oral and
documentary evidence, as well as the submissions made on behalf
of the parties, found the appellant guilty under Sections 302 and
201 of the Indian Penal Code and sentenced him, as indicated
above. The learned Trial Court, recorded that, the prosecution has
proved the chain of circumstances and each circumstance, as relied

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by the prosecution, has been conclusively proved pointing towards
the guilt of the accused and none else. The learned Trial Court held
that the prosecution has successfully proved motive behind the
murder and deceased died because of administration of the
poisonous substance – Sodium Nitrate and the appellant accused
had procured it and administered the same in the fruit beer.

7. Being aggrieved by, and dissatisfied with the judgment of
conviction and sentence, the appellant has come up with present
appeal.

8. Evidence adduced by the prosecution:

We would like to have a cursory look at the evidence
adduced by the prosecution through its witnesses:

8.1 Dr. Sanjay R. Sinha (PW.13): This doctor being a Medical
Officer, Government Hospital, Jetpur, had conducted postmortem on
the body of deceased Manish B. Makwana and Kaushal Rasikbhai
Parikh. Both the deceased died due to cardio respiratory failure on
account of consummation of poison. During the postmortem, the
doctor did not have noticed any external or internal injuries on the
body of both the deceased, but there were signs of consummation of
poison as the cyanosis present over nail beds of all fingers and toes.
The witness had kept pending the final cause of death because the
reports of chemical analysis of viscera was awaited and the report of
FSL (Exh.16) shows that, the presence of poisonous substance
sodium nitrate found in the stomach contents and other pieces of

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liver, lung, spleen and kidneys. In nutshell, the medical evidence
(P.M. Note - Exh.37 and 38) along with the viscera report (Exh.16)
proves that, the cause of death of both the deceased was due to
administration of poison.

8.2 Manish @ Lala Rasik Parekh (PW.6): This witness is the brother
of deceased Kaushal Parekh. This witness has no personal
knowledge about the incident. He was informed by PW.10 – Paresh
@ Haklo Chandubhai Gajera. The witness came to know from
PW.10 about the serious condition of his brother and deceased who
were found on the bench of village temple. This witness had
expressed suspicion on the death of his brother and during the
investigation of accidental death, his statement was recorded and in
his statement, he had disclosed that, his brother is died in mysterious
circumstances and he is making inquiry on the death of his brother
and due to trauma and mental shock, he could not be in a position to
disclose further on this aspect and in future he will disclose the
entire facts of the incident and after five days of the incident i.e. on
20.05.2011, he lodged an FIR alleging against the accused that, his
brother and deceased Manish were called upon by the appellant-
accused at his home and made them to drink a fruit bear mixed with
the poisonous substance because the appellant-accused was having
suspicion that, the deceased Manish had an affair with his wife. The
basis of the FIR was the information given by PW.10 – Paresh @
Haklo who happened to be friend of both the deceased and he had
seen that both the deceased went to the house of the appellant-
accused. In the cross-examination, defense has tried to establish that,
the appellant-accused was not known as “Dakudo @ Sunil”.

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However, the testimony of the witness on the identification of the
accused has not been shaken. The defense has tried to establish that,
after delay of five days, the appellant has been wrongly implicated
in the offence. In the cross-examination, the witness has explained
that, at the relevant time, he was in shock and trauma which would
be the reason for delay in lodging the FIR.

8.3 Jitesh Babulal Makwana (PW.9): This witness is the brother
of deceased Manish Babubhai Makwana and according to
prosecution case, the deceased by his oral statement disclosed before
the witness that, “he drunk cold drink at the house of Dakuda”. The
witness was informed by someone about the incident and he
immediately rushed at the place where both the deceased were lying
on the bench of village temple. Both the deceased were being taken
in the goods rickshaw for the treatment at the private clinic and
while on the way to hospital, the head of the deceased Manish was
in the lap of this witness and in the semi state of mind, the deceased
Manish disclosed that, he drunk cold drink at the house of Dakuda.

8.4 Paresh @ Haklo Chandubhai Gajera (PW.10): This witness
was the close friend of both the deceased and at relevant time, he
was in the company of both the deceased. This witness has stated in
the chief-examination that, on 15.05.2011 at about 12 o’ clock in
noon, he along with two deceased and one another friend, Manish @
Karo were assembled at the village temple and at that time, deceased
Kaushal received a phone call on his mobile. The mobile was dialed
by appellant-accused to call upon deceased Kaushal and Manish at
his home for taking cold drinks. The deceased Kaushal had shared

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this information with all the friends. The witness and other friends
cautioned the deceased Manish and Kaushal that, please do not go to
the house of the appellant as on earlier occasion, the appellant had a
quarrel on the suspected affair of his wife with Manish. The witness
has further stated that, during the discussion, the appellant again
rang up and asked the deceased Kaushal and Manish to come to his
house and also informed that, he is going to purchase cold drinks
and he will give a miss call. The witness has further stated that, the
deceased Kaushal had informed him that, there was a miss call on
his mobile phone from the appellant. The witness has further stated
that, on account of insistence of the appellant, both the deceased
agreed to visit the house of the appellant. The witness has further
stated that, the appellant had only invited both the deceased and
requested not to come with other friends. The witness has further
stated that, due to earlier dispute, he and other friends, accompanied
to both the deceased up to the house of the appellant and they had
seen that, both the deceased went into the house of the appellant and
he stayed outside the house of the appellant for some time so that, in
emergency, he could help both the deceased. The witness has further
stated that, after some time, when he did not find any unusual things,
he along with other friends, left the place and after some time, when
he was at the pan shop nearby the temple, he noticed that, both the
deceased lying on the bench of temple and they were in the semi
unconscious state of mind. The witness has further stated that, with
the help of pan shop owner and others, both the deceased
immediately taken to the private hospital and meanwhile, he had
informed the brother of the deceased Manish. The witness has

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further stated that, both the deceased were declared dead and at the
hospital, he made conversation with the brother of the deceased
Kaushal about the party hosted by the appellant-accused at his
house.

In the cross-examination, the defense has tried to establish
that the appellant-accused was not known as “Dakuda @ Sunil” and
there were other persons known as Dakuda in Jetpur village.
However, the testimony of the witness on this aspect is not shaken
and he stood firm on the identification of the accused. The defense
has tried to establish that, there is unexplained delay in recording his
statement during the investigation which would render his evidence
unreliable. However, in the cross-examination, the witness has stated
that, due to fear of police, he did not have disclosed at the earliest
about the party hosted by the accused at his home.

8.5 Keval Jaiswal (PW.15): This witness is the pan shop owner doing
his business in the name of “Jignesh Pan & Riddhi Siddhi Pan”. This
witness in his chief-examination, has stated that, on 15.05.2011, in
the noon hours, the appellant came to his shop for purchasing cold
fruit bears which he had packed as parcel and sold it to the appellant.
He also identified the accused in the court further stating that, he
who had come to his shop for purchasing the fridge fruit bear. In the
cross-examination, defense has tried to establish that, due to rush
hours in the entire day, it would not be possible for him to remember
each and every customer who usually come to his shop for
purchasing pan or cold drinks. However, the witness stood firm on
the issue of purchasing fruit bear by the appellant from his shop.

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8.6 Naresh @ Pappu Govind Dhandha (PW.16): This witness is
doing his printing business in the name of “ Shakti Bandhej” in
Jetpur town. The work of the factory is mainly to give different
colours to the Bandhani Saris and for preparing the different colours,
the contents of Sodium Nitrate is being used for printing saris. The
witness for chemical purpose, purchased the sodium nitrate in bulk
from the local trader namely Pradip Chemicals and one parcel of jute
bag weighing 50 kgs. being sold by the trader. In order to process of
colouring, the man power is required for further processing of
colouring. The appellant accused from 03.05.2011 to 08.05.2011
was employed as a master for doing laboring work. The copy of the
relevant page of muster showing the name of the appellant as
labourer was produced by the witness along with the purchase bills
of sodium nitrate were being produced at Exh. 45 and 46 by the
witness. This witness has stated in chief examination that, the
appellant was employed by him and the muster was having been
prepared and maintained by him manually. It is the case of the
prosecution that, while the appellant was under employment of the
witness, he secretly obtained the some portion of poisonous
substance Sodium Nitrate from the 50 Kg. bag and then he mixed it
with the fruit beer allegedly drunk by both the deceased. The witness
has identified the accused in the Court and reconfirmed that, during
the period as referred, the appellant accused worked with him as a
master in his factory. In the cross-examination, the defense has tried
to establish that, the Exh. 45 – abstract of the muster, is being
concocted to create evidence against the accused, however, the

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witness stood in the cross-examination on this aspect and did not
agree with the suggestion that, the appellant had never work in his
factory and the name Sunil is not in any manner connected with the
appellant herein.

8.7. Ramjibhai Bagda (PW-17) : This witness on the day of incident i.e.
on 15.07.2011, was on duty as a Police Head Constable with Jetpur
City Police Station and after registration of the accidental death, he
came into charge of the inquiry. During the inquiry, after preparing
the inquest, the dead body of both the deceased were being sent by
him for post mortum at the Jetpur Government Hospital and also
recorded the statement of the brother of the deceased namely Manish
@ Lala Rasik Parekh and same is produced at Exh. 48. In the cross-
examination, the witness has admitted that, neither the complainant
Manishbhai nor the witness PW-10 of anyone, had disclosed before
him that both the deceased were being called by the appellant
accused at his home and made him to drink a poisonous substance
mixed in a fruit beer.

8.8 Ashokkumar Gajanan Trivedi (PW-18) : This witness had served
as PSI with Jetpur City Police Station and on 20.05.2011, when he
was on duty, he recorded the FIR allegedly disclosed by complainant
Manish Parekh, which he has produced at Exh. 22. Except recording
the FIR, he did nothing so far investigation is concerned. In the
cross-examination, it is stated by the witness that, he had an
opportunity to examine the case papers of accidental death and had
noticed that, two persons died in a mysterious circumstances. It is
further stated in the chief-examination that, at the time of recording

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the FIR, he himself noted down the contents of the FIR, and on that
basis the typed FIR came to be prepared. It is denied by the witness
that, the FIR being prepared by the advocate of the complainant. It is
further stated that, there is a delay of 5 days in lodging the FIR and
the reason for delay as explained by the complainant, is mental
shock and trauma.

8.9 Anirudhsinh Jadeja (PW.19): This witness being a Police
Inspector of City Police Station, Jetpur, had been entrusted with the
investigation of the case. The witness in his chief-examination has
stated that, during the investigation of the cease, he had recorded the
statements of the witnesses, drew the panchnama of scene of
occurrence, arrested the appellant-accused and during his remand
period, at the disclosure statement of the accused, seized and
recovered the necessary articles from the place of incident and sent
the seized articles to FSL for chemical analysis. In the cross-
examination, the I.O. has admitted that, before 20.05.2011, for
disclosing relevant facts of the incident, the witnesses had never
come before him. It is also admitted by the witness that, the witness
Paresh @ Hakli, in his police statement, has not stated the full name
of the accused. He has also admitted that, for the identification of the
accused, he did not have hold the identification parade through
Executive Magistrate. It is denied by the witness that, there are three
to four persons, residents of Jetpur village whose names are
“Dakudo”. It is admitted by the witness that, the witness Paresh @
Hakli has not shown the place of incident. It is also admitted by the
witness that, during the inquiry of A.D. Case, the panchnama of

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place of occurrence was being drawn by the concerned officer. It is
also admitted by the I.O. that, there is no provision in the law for
drawing the demonstration and/or reconstruction panchnama. The
witness has denied to the suggestion that, the name of the appellant
Shamji @ Sunil @ Dakudo as mentioned in the case records, is
being falsely mentioned to implicate him in the serious case of
murder. It is admitted by the witness that, the person named as
“Shamji @ Sunil @ Dakudo” is not working in the factory named as
“ Shakti Bandhej” in Jetpur, however, the witness has voluntarily
clarified that, the person known as Sunil was working in the factory
and the same person had worked from 03.05.2011 to 08.05.2011.
The witness has also admitted that, in the Jetpur Town, so many
factories are using sodium nitrate for preparing colour, to be used for
printing saris. The witness has admitted that, during the
investigation, it was not revealed that, deceased Manish was having
illicit relations with anyone. Lastly, it has been denied by the witness
that, the accused in the name of Dakudo is being falsely implicated
in the offence by him.

8.10 Balwantbhai Sonara (PW.21): This witness being a P.S.I. of City
Police Station, Jetpur, took the charge of the investigation from the
P.S.I. Jadeja and except filing of the chargesheet, he has not
investigated the case.

9. We have heard learned counsel Mr. P.P. Majmudar appearing for
and on behalf of the appellant-accused and Mr. Ronak Raval,
learned Additional Public Prosecutor for the respondent-State.

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Submissions:

10. Mr. Majmudar, learned counsel while assailing the impugned
judgment of conviction and order of sentence, has urged that:

(a) Learned trial court grossly erred while convicting the accused-
appellant without appreciating the evidence in the right prospective;

(b) The case of prosecution rests on circumstantial evidence and the
circumstances as relied by the prosecution have not been
conclusively proved and established, pointing only to guilt of the
accused and the main link in the chain of circumstances like the
procurement of the poison sodium nitrate by the accused and
administering the same in the fruit bear and made both the deceased
to drink on 11.05.2011, have not been proved and established. In this
regard, it was contended that:

(i) The recovery panchas of the sample sodium nitrate from the factory
have not supported to the case of prosecution, nor the I.O. has
proved the contents of panchnama and therefore, the inference of
stealing the sodium nitrate by the accused from the factory of PW.6
was possessed and used by the accused for the purpose of
administering the same to the deceased could not be raised and no
reliance can be placed on this circumstance to prove that, the
deceased died of poison said to have been administered by the
accused.

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(ii) That, the purchase of cold drinks by the accused has also not been
proved as it is humanly impossible for the vendor to remember the
purchase made by each and every customer.

(iii) The factum of employment of the appellant-accused with the “
Shakti Bandhej” factory owned by PW.6 is not proved and
established as except name Sunil, nothing being mentioned in the
extract of muster (Exh.45). In the facts of the case, the accused being
implicated as Shamji @ Sunil @ Dakudo, son of Kalubhai Mer and
the prosecution miserably failed to prove that, the accused was
known as Sunil.

(iv) In the facts of the case, the incident of administering the poison took
place on 15.05.2011 between 12:45 to 13:15 and the FIR by the
brother of deceased Manish was being filed on 21.05.2011. The star
witness PW.10 – Paresh @ Haklo Gajera had knowledge that both
the deceased were invited for taking cold drinks by the appellant-
accused and he had seen that, both the deceased took their entry
inside the house of the appellant. Before the deceased would take
their entry inside the house of the appellant, the mobile call was
being dialed by the accused on the mobile of deceased Kaushal.
Despite of this, during the investigation, no CDR details of the
mobile phone of the accused and deceased persons were collected by
the I.O. to prove that, the appellant-accused had called the deceased
Kaushal and invited him at his house for drinking cold drinks. The
star witness (PW.10) was throughout with the family of both the
deceased. However, for a period of five days, despite the presence of

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the police, the complainant or the star witness (PW.10) though
having opportunity to disclose the true facts about drinking cold
drinks by both the deceased at the house of appellant, none has
reported the true facts to the police. Even, the complainant whose
statement prior to the FIR came to be recorded by the Head
Constable Bagda, no any facts of taking cold drinks at the house of
the appellant being disclosed by him. Even, none of the witnesses
have seen both the deceased persons coming out from the house of
the appellant. In such circumstances, unexplained long delay in
lodging the FIR and recording the statements of material witnesses,
during the investigation would render the evidence of such witnesses
unreliable and no reliance can be placed to prove and establish that
on the day of incident, both the deceased were invited by the
appellant-accused at his home and made them to drink the poisonous
substance sodium nitrate allegedly mixed in the fruit beer and after
drinking it, the deceased had left the house of the appellant and took
their seat at the bench of village temple.

(v) In the facts of the case, the motive was the illicit relationship with
the wife of the appellant-accused. In the case of circumstantial
evidence, the motive assumes considerable importance and nothing
on record to show that, prior to the incident, there was a quarrel
between the appellant and the deceased Manish on the issue of illicit
relationship and therefore, when the motive is not proved and
established, the charge cannot be said to have been proved beyond
reasonable doubt against the accused.

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(vi) Lastly, the material evidence to connect the accused in the crime has
not been obtained and collected by the I.O. The CDR details of the
mobile phone of the accused and deceased persons were not
collected to prove that the appellant had called the deceased Manish
at his house on the day of incident.

11. In such circumstances as referred above, it was submitted that, the
entire conviction rendered by the trial court is based on conjectures,
surmises and suspicion and suspicion howsoever strong cannot take
place of proof and it is settled position of law that, the burden lies on
the prosecution to prove the allegations beyond reasonable doubt
and in the facts of the present case, the chain of events as referred
above, have not been proved and established and none of the
circumstances relied by the prosecution have been proved beyond
reasonable doubt and those circumstances either cumulatively or
individually are insufficient to establish the guilt of the accused and
therefore, it is prayed that, there being merits in this appeal and same
may be allowed and the judgment of conviction and order of
sentence may be set aside and the appellant may be acquitted of all
charges.

12. Mr. Ronak Raval, learned Additional Public Prosecutor for the
respondent-State vehemently opposed the appeal and contended that
the Trial court has not committed any error in holding the appellant-
accused guilty of the offence and further contended that the
prosecution in this case, has proved beyond reasonable doubt the
charge against the appellant accused. The identity of the accused is
proved and established as at the time of arrest, the name Shamji @

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Sunil @ Dakudo being referred and the arrest panchnama has been
admitted by the defense and therefore, when the witnesses were
knowing the appellant-accused prior to the incident, the question of
his identity does not arise and there was no need for the I.O. to hold
the T.I. Parade. The witness (PW.10) being a close friend of both the
deceased, had witnessed that the appellant had invited both the
deceased at his home and after some conversation, both the deceased
in the presence of the witness, had gone to the house of the appellant
and on this aspect, the evidence of PW.10 is acceptable, trustworthy
and nothing being brought on record to substantiate his
creditworthiness and therefore, in absence of CDR details, the
evidence of PW.10 is sufficient to prove and establish that, the
deceased were invited by the accused at his home for drinking cold
drinks and after accepting the invitation, they had gone to the house
of the accused. The sample of sodium nitrate being taken at the
house of the accused and as per the FSL Report, it was poison
sodium nitrate and same being procured by the accused from the
factory of PW.6 and by purchasing the fruit beer from the shop of
PW.15, the deceased were offered to drink the fruit beer mixed with
poison. In such circumstances, the evidence of witnesses on the
circumstances as referred above, are consistent and there is no
material contradiction and so far delay in lodging the FIR and
delayed examination of the witnesses is concerned, there is
sufficient explanation offered by the witnesses which further proves
that the version of PW.10 and other witnesses are convincing and
reliable and delay has been sufficiently explained.

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13. In such circumstances, as referred above, learned Additional Public
Prosecutor submitted that the incriminating circumstances, relied by
the prosecution, are conclusively proved and established and the
same is formed complete chain pointing towards the guilt of the
accused and there is no gap left in the chain of evidence and
therefore, there being no merits in the appeal and the same may be
dismissed.

14. The prosecution case rests on the circumstantial evidence. The law
with regard to the conviction on the basis of circumstantial evidence
has been discussed in detail by the Supreme Court in the case of
Harishchandra Ladaku Thange Vs. State of Maharashtra
reported in AIR 2007 Supreme Court 2957. It will be useful to
reproduce the relevant paras:-

“8. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. (See
Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v.
State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State
of Karnataka (AIR 1983 SC 446), State of U.P. v. Sukhbasi &
Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir Singh v.
State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee
v. State of M.P. (AIR 1989 SC 1890). The circumstances from
which an inference as to the guilt of the accused is drawn have to
be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram v. State of Punjab (AIR
1954 SC 621) it was laid down that where the case depends upon
the conclusion drawn from circumstances the cumulative effect of
the circumstances must be such as to negative the innocence of
the accused and bring home the offences beyond any reasonable
doubt.

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9. We may also make a reference to a decision of this Court
in C. Chenga Reddy & Ors. v. State of A.P. (1996 (10) SCC 193),
wherein it has been observed thus : "21. In a case based on
circumstantial evidence, the settled law is that the circumstances
from which the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there
should be no gap left in the chain of evidence. Further, the
proved circumstances must be consistent only with the hypothesis
of the guilt of the accused and totally inconsistent with his
innocence."

10. In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79)
it was laid down that when a case rests upon circumstantial
evidence, such evidence must satisfy the following tests: (1) the
circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established; (2) those
circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused; (3) 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 none else; and (4)
the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis
than that of guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be
inconsistent with his innocence."

11. In State of U.P. v. Ashok Kumar Srivastava (1992 Crl. LJ
1104) it was pointed out that great care must be taken in
evaluating circumstantial evidence and if the evidence relied on
is reasonably capable of two inferences, the one in favour of the
accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully
established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of guilt.

12. 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: (1) the facts alleged as the basis of any legal inference
must be clearly proved and beyond reasonable doubt connected
with the factum probandum; (2) the burden of proof is always on

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the party who asserts the existence of any fact, which infers legal
accountability; (3) in all cases, whether of direct or
circumstantial evidence the best evidence must be adduced which
the nature of the case admits; (4) 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 (5) if there
be any reasonable doubt of the guilt of the accused, he is entitled
as of right to be acquitted.

13. There is no doubt that conviction can be based solely on
circumstantial evidence but it should be tested by the touchstone
of law relating to circumstantial evidence laid down by this
Court as far back as in 1952.

14. In Hanumant Govind Nargundkar and another v. State of
M.P. (AIR 1952 SC 343) it was observed thus: "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 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."

15. A reference may be made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622).
Therein, while dealing with circumstantial evidence, it has been
held that the onus was on the prosecution to prove that the chain
is complete and the infirmity of lacuna in the prosecution cannot
be cured by a false defence or plea. The conditions precedent in
the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They 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

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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 show that
in all human probability the act must have been done by the
accused.”

15. In the facts of the present case, the accused is facing the charge of
committing murder of two persons by administrating them the
poison Sodium Nitrate. The law on this aspect is well settled. The
Supreme Court in the case of Anant Chintaman Lagu Vs. State of
Bombay (AIR 1960 Page-500) held that three elements are
necessary to be proved to establish a case of poisoning; (i) that death
took place by poisoning; (ii) that the accused had the poison in his
possession; (iii) that the accused had an opportunity to administer
the poison to the deceased. The Supreme Court further observed that
discovery of poison may not always be possible as administration of
poison is done in secrecy. The Supreme Court in the said judgment
further observed that “A case of murder by administration of poison
is almost always one of secrecy. The poisoner seldom takes another
into his confidence, and his preparations to the commission of the
offence are also secrete. He watches his opportunity and
administers the poison in a manner calculated to avoid its detection.
The greater his knowledge of poison, the greater the secrecy, and
consequently, the greater the difficulty of proving the case against
him.” Recently, the Supreme Court in the case of Hariprasad @
Kishan Sahu Vs. State of Chhattisgarh (2023 Live Law Supreme
Court 968), referring the landmark case of Sharad Birdhi

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Chandsadha Vs. State of Maharashtra (1984 (4) SCC 116),
reiterate the circumstances to be proved in cases of murder by
poison viz. (a) clear motive for the accused to give poison; (b) death
due to poison; (c) accused should have the poison with him; (d)
opportunity to administer poison.

16. The facts of this case are to be considered on the touchstone of the
law which has been laid down by the Supreme Court.

17. In the case on hand, the prosecution has relied upon the following
circumstances to establish its case:

(i) On 15.05.2011, between 12:45 to 13:15 hours, at the Jetpur Town,
Dist.: Rajkot, the appellant accused called upon the deceased Manish
Babubhai Makwana and Kaushal Rashik Parekh at his home for
drinking cold-drinks fruit beer.

(ii) When the deceased were called upon by the appellant accused, they
were assembled at the temple area of the town, accompanied by their
two friends viz. Paresh @ Haklo Gajera (PW:10) and Manish @
Kara.

(iii) The appellant accused was having suspicion that the deceased
Manish had an affair with his wife and that is why they were called
upon at his house.

(iv) The appellant accused before both the deceased could reach at his
house, he managed to get to parcels of cold-drinks nearby the pan-

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shop owned by PW:15 Keval Jaiswal.

(v) The appellant accused before the incident had worked with the
factory named Shakti Bandhesh, run and owned by PW:16 Naresh
@ Pappu Govind Dhandha and during his employment, secretly he
had managed to get poisonous substance Sodium Nitrate allegedly
lying in the factory area.

(vi) On account of the invitation given by the appellant accused, both the
deceased went to the house of the appellant and made them to drink
glass of fruit beer mixed with poison Sodium Nitrate.

(vii) After drinking the fruit beer mixed with the poison, both the accused
left the house of the appellant accused and come to temple area of
the town and sit on the bench of the temple and due to
administration of the poison, they went into semi unconscious state
of mind and they were noticed by the PW:10 and others and
immediately, taken to the nearby hospital where they declared dead
and the chemical analysis report would indicate the poison Sodium
Nitrate found in the viscera and matched with the sample taken from
the factory.

18. In the aforesaid facts and circumstances, the question that arises for
our consideration is whether the aforesaid circumstances – (i) to (vii)
forms a chain pointing only to the guilt of the accused and the facts
are capable of giving rise to inference of the guilt of the accused
appellant ?

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19. Admittedly, the prosecution case rests only on the circumstantial
evidence. After careful examination of the evidence on record, the
material witness is PW:10 Paresh @ Haklo Chandubhai Gajera as on
15.05.2011, he along with other friend Mr.Manish @ Karo were
present at the time of taking decision by the deceased whether the
invitation given by the appellant accused for drinking cold drinks at
his home would be accepted or not ? It is admitted facts that the
witness PW:10 did not have disclosed at the earliest before the
police that the deceased were invited by the appellant accused at his
home for taking cold drinks and on that ground, the defence has
attacked that the witness is got up witness and his presence as
claimed is doubtful and in absence of any sufficient explanation for
not disclosing the true facts at the earliest creates a doubt on the
story of the prosecution. Upon close scrutiny of the testimony of
PW:10, we found that due to the untimely death of his two friends,
he was in shock and he was in apprehensive state of mind that the
police would might be booked in the incident. It is true that the
witness PW:10 in his deposition stated that from the date of the
incident to the registration of the offence, he has not stated to anyone
that the deceased were called upon by the appellant at his house. On
the other hand, the complainant PW:6 Manish Parikh who is brother
of the deceased Kaushal admitted that on the day of incident he
came to know from PW:10 that the appellant had called upon his
brother at his home. We are conscious about the settled legal
position that prompt interrogation of witness under Section 161
Cr.P.C. lends assurance to the Court about the credibility of the
witnesses. However, it is equally settled that mere a delay

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examination of the witnesses is not sufficient to discard the reliable
evidence, when he made a reasonable explanation for not disclosing
the facts of occurrence. In the facts of the present case, the PW:10
being a labourer and belongs to a lower strata of the society, not
disclosing the facts of the investigation soon after the incident would
be justified as he was under apprehension that police might be
arrested him in the offence. In such circumstances, the delayed
examination of the witness for a period of five days would not a
reason to discard his evidence on the aspect of invitation of the
appellant and other things. The witness was the friend of the
appellant as well as the deceased and he was knowing the past of the
appellant as well as deceased Manish and he had clarified that the
appellant was having suspicion in his mind that the deceased Manish
might have relations with his wife and before the incident, there was
a quarrel between them and that is why, the PW:10 cautioned both
the deceased that under the pretext of giving cold drinks, the
appellant may take revenge and beat them, but the repeated calls in
the presence of PW:10 made to deceased Manish by the appellant
would be the reason for agreeing and accepting the invitation of the
appellant. It is further required to be noted that the PW:10 after both
the deceased went inside the house of the appellant, kept a watch
outside the house of the appellant so that in any case, if something
has happened in the house, he would come to rescue of both the
deceased and after some time, the witness felt that nothing would be
happened in the house and therefore, he along with other friend
Manish @ Kara left the place. In such circumstances, on careful
examination of the evidence of PW:10, his presence at the time of

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incident at the place with both the deceased is proved and
established and we have no any doubt about it and he has passed the
test that he is telling truth and he is not deposing against the accused
because of his relation with both the deceased. In such
circumstances, the first, second and third circumstance, as relied by
the prosecution are being proved and established. In other words, on
the basis of evidence of PW-10, the circumstance of meeting of the
accused with the two deceased persons at his home on 15.05.2011 in
the noon hours, is being proved and established and they had been
offered to drink the cold drink by the appellant and it is further
proved that, the relation of the appellant and deceased Manish was
not cordial because the appellant was having suspicion in his mind
that, there was an affair with his wife by the deceased Manish and
said facts were in the knowledge of PW-6 and other friends Manish
@ Kara and none else. The prosecution has dropped the witness
Manish @ Kara as the necessary facts already been unfolded by the
material witness PW-10 and to avoid the repetition, the prosecution
did not have examined the witness Manish @ Kara. On non-
examination of material witness, the Supreme Court in its various
judgments, held and observed that, the Court is required first to
assess the trustworthiness of the evidence available on record and if
the court finds the evidence worthy of being relied on, then the
testimony has to be accepted and acted upon though there may be
other witnesses available who could also have been examined, but
were not examined. In Takhaji Hiraji Vs. Thakore Kubersinh
(2001) 6 SCC 145, on the issue of non-examination of other
witnesses, the Supreme Court laid down the ratio that, if the

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witnesses already examined are reliable and the testimony coming
from their mouth is unimpeachable, the Court can safely act upon it,
uninfluenced by the factum of non-examination of other witnesses.
In the facts of the present case, as discussed above, the evidence of
PW-10 Manish @ Kara has been examined carefully and after
reading his evidence as a whole, we find a ring of truth in his version
and his conduct also found natural.

20. The defense has raised the doubt on the prosecution case on the
ground that, there was a delay in giving the FIR by the brother of the
deceased and there is a material contradiction in the evidence of
complainant and PW-10, who was lastly seen in the company of
deceased. It is true that, the FIR came to be lodged for the incident
dated 15.05.2011 on 21.05.2011. The evidence on record shows that
the complainant PW-6 had received the information from the PW-10
that both the deceased were lastly in his company and had gone to
the house of the appellant because of the invitation given by the
appellant for taking cold drinks. In this regard, PW-10 has stated
that, during 5 days, he did not have disclosed the said facts to any
one. So far as delay in lodging the FIR is concerned, the
complainant had clarified that they were in process of getting
necessary inputs and due to untimely death of his brother, he was in
trauma and shock. It is relevant to note that, the statement of the
complainant during the inquiry of accidental death came to be
recorded by PW-17 Ramji Bagda, Head Constable. The copy of the
statement duly signed by the complainant is on record at Exh. 48. In
the last para of the statement, the complainant had stated that “there

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is no enemy of his brother and there was no any financial liability
on him and therefore, he having reasonable suspicion on his death
and he is making inquiry on the aspect of the incident and later on
he will disclose in detail because, at this stage, they are in trauma
and shock and therefore, he does not want to disclose anything
more.” We have carefully read the statement of the complainant
Exh. 48. The delay of 5 days in lodging the FIR is satisfactorily
explained by the complainant as the reporting of incident was under
further inquiry and due to sudden death of his brother that too
without any reason, he could not be in a position to disclose the
entire facts on the day of incident or thereafter. We are conscious
abut the settled position of law that the First Information Report in a
criminal case is an extremely vital and valuable piece of evidence
for the purpose of corroborating the oral evidence adduced during
the course of trial. The object of insisting of prompt lodging of
report to the police of commission of offence, is to obtain early
information regarding the circumstances, in which the crime was
committed, names of actual culprits and the part played by them as
names of the eye-witnesses present at the scene of occurrence. The
FIR cannot be treated as substantive piece of evidence and it can
only be used to corroborate or contradict the informant’s evidence
and undue or unreasonable delay in lodging the FIR may give rise to
suspicion which put the court on guard to look of the possible
motive and explanation for the delay and consider its effect on the
trustworthiness or otherwise on the prosecution version. Ofcourse,
delay in lodging the FIR by itself cannot be regarded as the
sufficient ground to draw an adverse inference against the

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prosecution case nor could it be treated as fatal to the case of the
prosecution. The Court has to ascertain the causes for delay, having
regard to the facts and circumstances of each case and the if the
causes are not attributable to any effort to concoct a version, mere a
delay by itself could not be a fatal to the prosecution case. (Hari
Prasad Kishan Sahu Vs. State of Chhatisgarh, (2024) 2 SCC
557). In the present case, as discussed above, the complainant who
was under shock and trauma, as without any reason, his brother died
due to administration of poison and he does not want to disclose the
facts received from PW-10 without further inquiry and his
satisfaction and that is why, when his statement was recorded (Exh.
48), he reserved his right to disclose the true facts at the later stage
and also disclosed that why he is not disclosing the entire facts.
Therefore, the explanation offered by the complainant PW-6 for
lodging delayed FIR for about 5 days, are convincing and in the
present case, the delay of 5 days would not be fatal to the
prosecution case and it would not be a ground to draw an adverse
inference against the prosecution case.

21. The defense has raised the issue that the IO failed to obtain a call
details of the appellant accused and deceased Manish, as in order to
prove the act of the appellant, calling upon the deceased at his house
and to support the version of PW-10, the call details evidence is vital
and utmost important and in absence of this evidence, the version of
PW-10 cannot be accepted. In the preceding paras we have
discussed at length about the reliability and trustworthiness of
evidence of PW-6. It is no doubt true that the CDR evidence having

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not been collected by the IO. The evidence of CDR is not the
substantial evidence but it is a corroborative piece of evidence. In
the present case the evidence of PW-6 on the aspect of calling upon
deceased Manish by the appellant accused on his mobile call, found
reliable and trustworthy as in his presence, the appellant called the
deceased Kaushal and later on deceased Kaushal had discussed with
the PW-10 about the invitation received. In such circumstances, the
non-production of evidence of CDR would not in any manner fatal
to the prosecution nor it creates a doubt about the version of the PW-
10.

22. In view of the aforementioned reasons, it is proved and established
that on 15.05.2011 in the noon hours, the deceased were called upon
by the appellant accused at his home for drinking cold drink and at
that time, the accused was having suspicion in his mind that the
deceased Manish had an affair with his wife.

23. In the facts of the present case, there is no dispute on the aspect of
death occurred due to poison – Sodium Nitrate, as the report of
chemical analyzer clearly proves the contents of poison Sodium
Nitrate found in stomach contents and in the other parts of the body
of the deceased. Thus, therefore, we have no hesitation to held that
both the deceased died due to poison Sodium Nitrate.

24. It is the obligation on the part of the prosecution to prove that at
relevant time, accused had the poison with him and by calling both
the deceased at his home, he had mixed the poison Sodium Nitrate in

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the fruit beer – cold drink and made both the accused to drink it.

25. Reverting back to the facts of the present case, PW-10 is the
material witness and he had seen that both the deceased went into
the house of the appellant – accused. The witness was present near
by the house for sometime and in absence of any untoward incident,
he left the place and within short span of time, he went to the pan
shop situated near the temple of the town and after taking pan, he
noticed that, both the deceased lying on the bench of the temple and
they were in the semi conscious state of mind. So far as arranging
and purchasing fruit beer by the appellant is concerned, the evidence
of PW-15 Keval Jaiswal shows that, in the noon hours, the appellant
had come to his shop and purchased two parcel of cold drink – fruit
beer and he received Rs.10/- from the accused. It was argued that,
the witness is got up witness and it is prudently not believable that,
the pan shop owner was having memory in his mind that, the
appellant had come to his shop, because, during the day time, there
were at least 100 or more customers usually come to the shop. In our
opinion, Jetpur town is a small town and the appellant being regular
customer, it could be possible for the seller to keep a good rapport
with him and naturally there is no difficulty for him to remember the
name of the customer and what things he has purchased. Therefore,
on 15.05.2011 in the noon hours the appellant visited the shop of
PW-15 and purchased a cold drink – fruit beer.

26. It is the case of the prosecution that the appellant accused was
employed on daily wages by PW-16 Naresh @ Pappu Govind
Dhandha and as per the extract of muster, he had worked from

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03.05.2011 to 08.05.2011 and the copy of the same is produced at
Exh. 46. We have carefully examined the evidence of PW-16. The
witness is running the factory in the name of ‘Shakti Bandhej’ in
Jetpur and his main work is to printing sarees (bandhani) and in
order to give different colours to the sarees, the use of Sodium
Nitrate is necessary for making colour and for that, he had purchased
50Kgs bag of Sodium Nitrate from Dipak Chemicals and invoice
thereof is produced at Exh. 45. The abstract of muster, as per the
witness’s version, being maintained in the handwriting of appellant
– accused and according to say of the witness, he being a master,
was managing the labour affairs. In such circumstances, the version
of PW-16 is reliable and acceptable and there is no any reason for
him to depose against the appellant. Therefore, this evidence of PW-
16 proves that, before the incident, the appellant accused was
employed in the factory owned by PW-16 and he was knowing that,
for preparing the colour, Sodium Nitrate chemical is being used.

26. Now the question is whether the accused after stealing some portion
of Sodium Nitrate from the factory of PW-16, had kept the said
poison with him and on 15.05.2011, by inviting both the deceased at
his home, made them to drink the said poison mixed in the fruit
beer? After careful examination of the evidence on record, it proves
that on 15.05.2011 in the noon hours i.e. at 12-00, both the deceased
were called upon by the appellant accused and thereafter, the
appellant accused purchased fruit beer from the shop of PW-15 and
gave a missed call, which was the final call and then both the
deceased went to the house of the appellant accused which is nearby

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the temple of the town. The offence period as shown was between
12-45 to 13-15. On this aspect, the evidence of PW-10 further
clarifies that within 20 to 25 minutes, he again came at the pan shop
situated near the temple and after purchasing pan, he noticed the
presence of the accused at the bench of temple. In such
circumstances, the proved circumstances, as referred above, rise to
legitimate inference that the accused was an opportunity to steal the
Sodium Nitrate poison and same was kept by him in his possession,
and on the day of incident, he had specifically invited only two
persons and after purchasing fruit beer, he prepared the drink mixed
with the poison and offered the deceased to drink it as if it was a
fruit beer i.e. cold drink. The period was so short that no other
possibility of administering the poison by someone can be presumed
or inferred and the distance of the appellant’s house and town
temple, was also too short and that is why both the deceased who
used to assemble at the temple of the town had come on the bench of
the temple and due to administration of the poison they went into
semi unconscious state of mind. The defense has raised the issue
that no one has seen both the deceased while taking exist from the
house of the appellant. In our opinion, there is no need to further
establish that the deceased had left the appellant’s house. The time
period was so short that there was no possibility for the deceased to
take visit of another place and drink the cold drink etc. In such
circumstances, when the appellant was alone at his house and as a
pre-planned, the manner in which, he procured the poison and then
called upon the deceased at his house, would certainly proves that
the accused had an opportunity to administer the poison to the

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deceased and as held by the Supreme Court in the case of Anant
Lagu (supra), in a case of murder, by administration of poison is
always in secrecy and that is why, he had destroyed the evidence
like steel container and glasses allegedly used in the commission of
the crime.

27. For the reasons recorded and having regard to the facts, evidence,
the incriminating circumstances, as referred in para- 17 of this
judgment, stand firmly established and chain of events conclusively
suggest and lead only to the irresistible conclusion that the appellant
accused alone is the purported of the crime alleged. As a result, the
prosecution has succeed in proving the charge of double murder by
adducing cogent, acceptable and credible evidence against the
appellant – accused.

28. In the result, we do not find any merits in the appeal and same
deserves to be dismissed and accordingly, it is dismissed. The
appellant is on bail. He is directed to surrender before the jail
authority to serve remaining part of sentence within 8 weeks. His
bail bond stands cancelled and surety is discharged. Registry is
directed to R&P to the trial Court forthwith.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)
P.S. JOSHI

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 20/02/2026 17:56:38

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