BHUPENDRAKUMAR NAGINBHAI MAYAVANSHIversusSTATE OF GUJARAT

     R/CR.A/156/2012                              JUDGMENT DATED: 16/01/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/CRIMINAL APPEAL NO. 156 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA

and
HONOURABLE MR. JUSTICE R. T. VACHHANI

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            Approved for Reporting
                                                 ✔
                                                 Yes

==========================================================
                                                              No


            BHUPENDRAKUMAR NAGINBHAI MAYAVANSHI & ANR.
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR GAJENDRA P BAGHEL(2968) for the Appellant(s) No. 1,2
MR BHARGAV PANDYA APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

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

                             Date : 16/01/2026

                            ORAL JUDGMENT

             (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1.      Feeling aggrieved and dissatisfied with the judgment and order of
conviction and sentence dated 12.08.2011 passed by the learned
Additional Sessions Judge, Bharuch in Sessions Case No.42 of 2009 for
the offences punishable under Section 302 and 201 of the Indian Penal
Code, whereby the appellants – accused has been sentenced for the
offence punishable under Section 302 and 120-B of the IPC to undergo
imprisonment for life with fine of Rs.2,000/-, in default, to undergo six
months RI and for the offence punishable under Section 201 of the IPC to


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undergo five years imprisonment with fine of Rs.500/-; in default to
undergo three months RI, the appellants have preferred the present appeal
under Section 374 of the Code of Criminal Procedure, 1973 (“the Code”
for short).


2.       The brief facts leading to the filing of the present appeal are as
under:


2.1      Complainant,       Devendrasinh        Bhupatsinh          Varachhiya,        on
26.12.2008 at about 8:30 a.m., had gone to his place of office at
Ankleshwar. While he was present on duty, at about 5:15 p.m., he
received a mobile phone call from Motisingh Ganpatsinh Matieda from
Ganesh        Sugar     Factory,   Vatariya.        Thereupon,      the   complainant
immediately came from Ankleshwar to the Vatariya Sugar Factory. After
his arrival, Motisingh took the complainant on his vehicle to the outskirts
of Vatariya village and showed him the dead body of his younger brother,
Manish. Insects were crawling over the dead body, and injuries caused by
a sharp-edged weapon were noticed on the abdomen and chest.


2.2      Upon lodging the complaint at Valiya Police Station and during the
course of investigation, it transpired that accused No. 1, Bhupendrabhai
Naginbhai Mahyavanshi, was having a love affair with witness
Pankajkumari. Pankajkumari and the Manish-deceased brother of the
complainant, were both studying together at Shikshan Bharati College,
Surat. As a result, there were frequent messages and incoming and
outgoing        telephone    conversations      between       the     deceased         and
Pankajkumari, which was not acceptable to Bhupendra. With a view to
removing Manish from the way, on 20.12.2008 the accused Bhupendra,
with an intention to kill the deceased Manish, came from his house to
Kamrej, collected information from the college regarding the off-campus

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activities of the deceased and Pankajkumari, and, on the pretext of giving
a camera to Pankajkumari, met her at the college. After obtaining the
mobile number from the call details, called accused No. 2-Prakash on his
mobile phone and called him at Kamrej. Thereafter, they came to know
that the deceased was proceeding to his native place Valiya. Accordingly,
the accused persons, riding on the Honda motorcycle bearing registration
No. GJ-19-N-460 belonging to accused Bhupendra, proceeded from
Kamrej and stood waiting in advance for the arrival of the deceased near
the Valiya–Ankleshwar crossroads situated close to National Highway
No. 8. Upon the arrival of the deceased, the accused took him into his
confidence and told him that they were going to drop him at Valiya. On
this pretext, the deceased was made to sit on the motorcycle. While
proceeding from Vatariya Sugar Factory towards Valiya, they diverted on
the Kachcha road leading towards village Badabeda where Bhupendra
stopped the motorcycle on the roadside on the pretext of discussing
matters relating to Pankajkumari and also under the guise of answering
the call of nature. While conversing, Bhupendra took the deceased inside
an adjoining agricultural field within the limits of village Naldhari, near a
Samdi tree, and at about 6:45 p.m., Bhupendra took out from his pocket a
weapon resembling an iron strip and inflicted incriminate blows on the
abdomen and chest of the deceased Manish, causing fatal injuries and
thereby resulting in his death. Thus, the accused persons, having hatched
a criminal conspiracy, committed the murder of the deceased Manish and,
with the intention of causing disappearance of evidence, abandoned the
dead body at the spot.


2.3.      Accordingly, FIR being CR No.133 of 2008 came to be registered
with Valiya Police Station. The Police after investigation charge-sheeted
the accused for the aforesaid offences before the learned JMFC, Court.
However, as the said Court lacks jurisdiction to try offence under Section

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302 IPC, the case was committed to the Sessions Court. On conclusion of
evidence on the part of the prosecution, the learned Sessions Court put
various incriminating circumstances appearing in the evidence to the
respondent-accused so as to obtain explanation/answer as provided under
Section 313 of the Code. In the further statement, the respondents-
accused denied all incriminating circumstances appearing against them as
false and further stated that he is innocent and a false case has been filed
against him. After examining the evidence, witness testimonies and
submissions from both sides, the learned Sessions Court recorded the
finding convicting the respondent-accused.


3.      We have heard learned Advocate for the appellants – convict and
learned APP for the respondent-State and minutely examined oral and
documentary evidence adduced and produced before the learned Sessions
Court concerned.


4.      Learned advocate appearing for the appellants – accused has
submitted that since the entire case of the prosecution rests on the
circumstantial evidence, the prosecution has failed to prove its case
beyond the reasonable doubt and does not prove that the entire chain and
therefore, learned Sessions Court has erred in convicting the appellant –
accused. It is further submitted that if the FIR in question is seen at the
first instance, the complainant gave the name of the accused on the basis
of the presumption of doubt and as such no specific role or description of
the accused having seen at the place of offence pointing out the role of
the accused in commission of the crime. It is therefore submitted that
when the conduct of the prosecution witnesses are highly unnatural and
improbable and inconsistent and therefore, learned Sessions Court ought
to have awarded the benefit of doubt to the appellant – accused.



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4.1      It is further submitted that the learned Sessions Court has awarded
the conviction on the appellants – accused on the basis of the scientific
evidence and on the basis of the confessional statement made by the
accused before the Police which has no evidentiary value in the eye of
law. It is further submitted that as such no witness who has last seen the
accused together before the commission of crime has come forward and
therefore, the theory on the basis of which the conviction has been
recorded is erroneous and therefore the appellants – accused ought to
have been acquitted.


4.2      It is further submitted that the learned Sessions Court has heavily
relied upon the contents of the Panchnama drawn post the incident in
question and the evidence of the Investigating Officer to hold the
appellants – accused guilty for the offence of murder. Whereas, the case
of the prosecution rests on the last seen together theory where no such
independent witness is examined before the Court who have seen the
deceased and the accused together prior to commission of the offence in
question and therefore, it is submitted that present appeal may be allowed
and the conviction and sentence recorded by the learned Sessions Court
may be set aside.


4.3      In support of his submissions, learned advocate for the appellants –
accused has relied upon the decision in case of Laxman Prasad Alias
Laxman vs. State of Madhya Pradesh [(2023) 6 SCC 399] and
Munikrishna alias Krishna etc. vs. State by Ulsoor PS [2022 SCC
OnLine SC 1449] and has submitted that as per the ratio laid down by the
Hon’ble Apex Court if one link in chain of circumstances to be missing
and not proved, the conviction based on circumstantial evidence is
required to be set aside.



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4.4      By making the above submissions, learned advocate for the
appellants – accused would submit to allow this appeal and to quash and
set aside the judgment and order of conviction and sentence.


5.       Mr.Ronak Raval, learned APP appearing for the respondent – State
submits that the impugned order of conviction and sentence does not
require to be interfered with as the learned Sessions Court has after
thorough appreciation of evidence has come to the conclusion and
recorded the conviction of the appellant – accused on the basis of the
evidence adduced before the Court. It is further submitted that the
evidence produced on record proves the involvement of the accused in
the commission of crime in question. He has further submitted that
evidence of the witnesses examined before the Court has supported the
case of prosecution and narrated the incident as it was happened. It was
submitted that no such omission or contradiction in the evidence of the
said witnesses have come on record to discard their evidence. He has
further submitted that the prosecution witnesses have deposed before the
Court narrating the entire chain of sequence whereby the involvement of
the accused is proved which corroborates with the scientific evidence
produced and proved by the prosecution and therefore, the judgment and
order of conviction and sentence may not be interfered with.


6.       Heard the learned Advocate for the appellant – accused
Mr.Gajendra Baghel and learned APP Mr.Ronak Raval for the respondent
– State and perused the deposition of witnesses as also documentary
evidence placed on record as well as the order passed by the learned
Sessions Court.


7.       At the outset, if the case on hand is seen, it is a case of a
circumstantial evidence and while leading the case, the prosecution is

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required to establish mainly three links of chain (i) motive; (ii) last seen;
and (iii) recovery of weapon of assault, showing involvement of the
accused. Thus, while dealing with the evidence on record, the Court
concerned is required to appreciate as to whether the aforesaid three
aspect is completed to prove the case of prosecution or not and if no then
the benefit of that would go to the accused as the prosecution has failed to
prove its case beyond reasonable doubt while missing to complete the
entire of circumstance.


8.      Now, reverting to the facts of the case on hand is concerned, it
appears from the record that PW 6 – Devendrasinh Bhupatsinh
Varachhiya was examined at Exh.30. This witness has deposed in his
testimony that as usual he went to his job at Ankleshwar on 26/12/2008
and he received a phone call of his uncle asking whereabouts of Manish
to which he replied that Manish used to come at interval of every 15 days
and thereafter again second time phone call came asking him to come at
Vatariya Sugar Factory and he went there and thereafter they both had
gone in a car to an agricultural field situated near Ganesh Sugar Factory
where the Police was present and showed him one dead body and asked
to identify the said dead body; to which he replied that it was his younger
brother – Manish which was assaulted with sharp edged weapon. This
witness has thereafter gone to the Police Station and lodged the complaint
which was produced at Exh.31. This witness has been cross-examined but
nothing indicating that he was having any personal knowledge that
deceased younger brother was having any love affair with Kumudben or
his younger brother wanted to marry with her.


        Thus, the evidence of this witness does not indicate as to whether
there was any friendship or love affair of the deceased which is the cause
of his death.

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9.      PW 10 – Vipul Narendrabhai Tadvi has been examined at Exh.39.
Witness has deposed in his testimony that he knew deceased – Manish as
they were studying together since 12th Standard, as also three years in the
college. Witness has deposed in his testimony that it was Saturday and as
usual, he went to Surat College from Kosamba and after relieving from
the College, he came to Ankleshwar in Memu Train and to go to Valiya
Village, he came out from the Station and sat in the jeep car which came
to be estopped to fill-in the diesel at GIDC Petrol pump which was
situated behind the ST Bus Depo where Valiya Chokdi is situated. This
witness has further deposed that he sat in the front seat of the jeep car and
he saw Manish opposite to Petrol pump; he was accompanied with two
other persons and there was motorcycle nearby them and they all three
were talking to each other. Manish carried one board and bag in his hand
where suddenly one person came on motorcycle, met these three persons
and went away in two minutes and thereafter Manish started to proceed
on the motorcycle; that means three persons went on the motorcycle after
having seated. This witness has further deposed that some time was
consumed to fill-in the diesel in the jeep car and thereafter Jeep car
started to proceed at Valiya and jeep overtook the motorcycle near
Gujarat Guardian School. The motorcycle was running at the speed of 30
to 40 kilometer and Motorcycle was having red colour strip. Manish was
accompanied with two other persons out of which one was of medium
height and another was of moderate height. This witness did not identify
the said two persons and having seen in the Court room, he did not
specifically say that it was that of two persons. This witness has deposed
that since he knew Manish long ago and therefore, he identified him; but
two persons were totally unknown. Since the face side of Manish was
towards him and rest of two persons’ face was towards Manish. Witness
has deposed in his testimony that thereafter after about six days, he came
to his home Valiya and came to know about committal of murder of

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Manish. The police recorded his statement. This witness has been cross-
examined by the other side wherein he has admitted that he saw Manish
and two other persons for about five to seven minutes and it was not dark
in spite of it was winter.


         Nothing indicating the involvement of the accused persons came
out from the evidence of this witness in spite of the fact that witness has
deposed to have seen two unknown persons accompanied the deceased –
Manish prior to commission of offence and thus the evidence of this
witness is not indicating of the fact of accused having last seen together
with the deceased.


10.      PW No.11 – Ramsinh Kesarsinh Verma has been examined at
Exh.40. Witness has deposed in his testimony that incident took place on
20/12/2008 and on that day, he went to Ankleshwar from Valiya and after
finishing his work in the evening, he came to Valiya Chokdi and at that
time, on the opposite side of the road, he saw Manish alongwith two other
persons on the motorcycle. It was red strip on the motorcycle and Manish
carried bag on his shoulder. He also carried one Black board. After the
jeep was arrived, he went away. He saw two unknown persons
accompanied Manish were present at the Mamlatdar’s Office and the said
two persons were present in the court and he identified them. Witness
has deposed that Police recorded his statement.


         This witness has been cross-examined by the other side wherein he
has admitted that prior to attending the Besna ceremony of the deceased –
Manish, witness had gone to the Police Station. Thus, the evidence with
regard to identification of the accused by this witness during the TI
parade can be said to be vitiated as there may be chances of this witness
having seen the accused while had been to the Police Station and

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therefore the evidence of this witness cannot be said to be helpful to the
prosecution.


11.      Thus, as can be seen from the evidence of the above two witnesses
upon which the heavy reliance has been placed by the learned Sessions
Court to record the conviction of the appellants-accused, no direct
evidence to link the accused with the crime in question has been emerged
and without naming the accused persons merely on the basis of assertion
claiming to be accused persons accompanied with the deceased prior to
commission of offence complaint came to be lodged. No doubt, these
witness claimed to have stated of having seen the deceased - Manish with
the two other persons (unknown persons) on the motorcycle prior to
commission of offence; but the witnesses were unable to name them
while the offence came to be registered. None of the above two witnesses
have named the accused persons while seeing them with the deceased
prior to commission of offence. Furthermore, PW 11 has deposed to have
gone to the Police Station prior to attending the Besna Ceremony of the
deceased and thus identification during the TI parade of the accused by
the said witness also comes under the shadow of doubt and therefore the
evidence in regards to identification of the accused during TI parade
would not come to the rescue of the prosecution as the same is not
creditworthy. The learned Sessions Judge has materially erred in relying
upon the evidence of these witness as the involvement of the appellants –
accused is not proved in commission of the crime in question from the
evidence of these witnesses. Furthermore, the evidence in regards to TI
parade is concerned, it appears that after seven days of arrest of the
accused, the said TI parade was conducted by the Police through
Executive Magistrate and thus there may be chances of accused having
seen by the witnesses cannot be ruled out and therefore, such TI parade
has no evidentiary value in the eyes of law.

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12.      Furthermore, insofar as the motive part i.e. love affair / friendship
of the deceased-brother of the complainant with Pankajkumari is
concerned, the said witness has been examined at as PW 12 at Exh.41 and
she has not supported the case of the prosecution and has been declared
as hostile, as she refused to identify the accused – Prakash. During the
course of cross-examination, this witness has also denied the fact that
there was love affair between her and Bhupendrabhai and having asked as
to whether Bhupendrabhai likes or not of her having friendship with
deceased-Manish; she stated that it was not true. Thus, the motive part
i.e. to eliminate the deceased from the way, the accused had killed the
deceased was also not proved beyond all reasonable doubt since the
person with whom the so-called relationship was claimed has denied the
said fact and therefore, the prosecution has measurably failed to prove the
motive part of the case of prosecution.


13.      It further appears from the record that the learned Sessions Judge
has relied upon the police statement recorded under Section 161 of the
Code of Criminal Procedure by the Police of one Dashrathbhai Balubhai
Vasava stating that accused – Bhupendra was present and accused –
Prakash made him to introduce and deceased – Manish was also present
and has further stated that they went to drop Manish at Valiya. The said
Dashrathbhai has been examined as PW 7 at Exh.32; however, the said
witness has been declared hostile by the prosecution; although the learned
Sessions Judge has relied upon the statement made under Section 161 of
the Cr.PC before the Police by the person who has been examined as
prosecution witness and has been declared hostile hostile by the
prosecution before the Court which can be said to be stage without any
substance as the statement made before the Police are used only for the
purpose of corroboration and cannot take place of evidence.



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14.      At this juncture, it would be apt to note that as per the decision of
the Hon’ble Apex Court in the case of Renuka Prasad vs. the State
Represented By Assistant Superintendent of Police [2025 INSC 657], it
has been unequivocally held that a statement under Section 161 of Cr.PC
is not a substantive piece of evidence. Relevant observations made in
paragraph No.25 to 26 reads thus:

         “25.     Section 162 of the Criminal Procedure Code, 1898 was dealt
         with in Kali Ram v. State of H.P. to hold that the provision makes it plain
         that ‘the statement made by any person to a police officer in the course
         of an investigation cannot be used for any purpose except for the purpose of
         contradicting a witness, as mentioned in the proviso to sub-section (1) or for
         the purposes mentioned in sub-section (2)’ (sic para-17). The said principle
         was reiterated with reference to Section 162 under the Criminal Procedure
         Code, 1973 in R. Shaji v. State of Kerala. It was held by this Court that
         ‘statements under Section 161 Cr.P.C. can be used only for the purpose of
         contradiction and statements under Section 164 Cr.P.C. can be used for
         both corroboration and contradiction’ (sic para-25). It was further held
         that though the object of the statement of witness recorded under Section
         164 is two-fold, there is no proposition that if the statement of a witness is
         recorded under Section 164 before a Magistrate, the evidence of such
         witness in Court should be discarded. Rajendra Singh v. State of U.P.,
         was a case in which the High Court, as in the present case, relied upon
         the statements of six witnesses, recorded by the IO under Section 161
         Cr.P.C., to enter a finding that the respondent could not have been
         present at the scene of crime, as he was present in the meeting of the
         Nagar Nigam at Allahabad. It was unequivocally held that ‘a statement
         under Section 161 Cr.P.C. is not a substantive piece of evidence. In view
         of the proviso to sub- section (1) of Section 162 Cr.P.C., the statement
         can be used only for the limited purpose of contradicting the maker
         thereof in the manner laid down in the said proviso’ (sic para-6). It was



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       found that the High Court committed a manifest error of law in relying
       upon wholly inadmissible evidence in recording a finding on the alibi
       claimed by one of the accused.


       26.      The statements made by the IOs regarding the motive, conspiracy
       and preparation comes out as the prosecution story, as discernible from
       the Section 161 statements of various witnesses who were questioned by
       the police during investigation; which statements are wholly inadmissible
       under Section 162 of the Cr.P.C. Merely because the IOs spoke of such
       statements having been made by the witnesses during investigation, does
       not give them any credibility, enabling acceptance, unless the witnesses
       themselves spoke of such motive or acts of commission or omission or
       instances from which conspiracy could be inferred as also                   the
       preparation, established beyond reasonable doubt. We are unable to
       find either the motive, the conspiracy or the preparation or even
       the crime itself to have been established in Court, at the trial through the
       witnesses examined before Court. The witnesses had turned hostile, for
       reasons best known to themselves. The only inference possible, on the
       witnesses turning hostile is that either they have been persuaded for
       reasons unknown or coerced into resiling from the statements made
       under Section 161 or that they had not made such statements before
       police officers. Merely because the story came out of the mouth of the
       IO, it cannot be believed and a legal sanctity given to it, higher than
       that provided to Section 161 statements under Section 162 of the
       Cr.P.C.”



       Thus the learned Sessions Judge has not considered the settled
principles of law and relied upon the such statement made before the
Police under Section 161 of the Cr.PC and thereby come to the
conclusion while recording conviction of the appellant which is against
the settled proposition of law.


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15.      It would also come on record that as per the case of the
prosecution, the blood stains part of the clothes of the deceased was
found in cut condition; whereas as per the FSL Report the clothes sent for
examination were not cut condition and thus it also speaks volume about
the case of the prosecution. It also appears from the record that muddamal
so recovered was sent to FSL on 03/01/2009 whereas the alleged incident
took place on 20/12/2008 and accused came to be arrested on 20/01/2009
which also speaks volume as to the fact of sending the muddamal prior to
arrest of the accused. However, learned Sessions Judge has not
considered the said aspect and recorded the conviction on the basis of the
statement made by the witness before the Police which has no evidentiary
value in the eye of law as said witness was also declared hostile by the
prosecution.


16.      Considering the aforesaid two aspects, the learned Sessions Judge
has believed the theory of last seen together to link the accused with the
crime in question and hold the accused guilty, as also considering the
statement recorded before the Police which is not admissible in the eye of
law which in the considered opinion of this Court cannot be made basis
for recording conviction of the appellants on the theory of last seen
together.


17.      In light of the appreciation of the aforesaid evidence, it appears that
this is not a case where the entire chain of circumstantial evidence is
completed as required under the law so as to indicate the guilt of the
accused and also exclude any other theory of crime. In the case on hand,
the learned Sessions Judge has failed to notice such aspect as to whether
any such motive is proved by the prosecution as alleged since the prime
witness PW 11 with whom the love affair / friendship of the deceased
was claimed has not been proved as the said witness has not supported

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the case of prosecution and declared hostile. Likewise, the two witnesses
who claimed to have seen the deceased with the accused prior to
commission of crime also failed to name to the accused persons at the
time of registration of offence and identify the accused before the Court
and thus the entire story of the prosecution comes under the shadow of
doubt.


18.      In a case of circumstantial evidence, the chain is required to be
completed as mandated under the law so as to indicate the guilt of the
accused while discarding any other theory of the crime. If one of the link
goes missing and not proved, in view of the settled law on the point, the
conviction is required to be interfered with. At this stage, with profit, we
may refer to the decision in case of Laxman Prasad Alias Laxman
(supra) where the Hon’ble Apex Court after referring to Sharad
Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116] and
Shailendra Rajdev Pasvan vs. State of Gujarat [(2020) 14 SCC 750] has
quashed the conviction by making observations in paragraph 2 to 4 as
under:
         “2.      The present one is a case of circumstantial evidence. The
         prosecution led evidence to establish three links of the chain: (i) motive,
         (ii) last seen, and (iii) recovery of weapon of assault, at the pointing out
         of the appellant. The High Court, while dealing with the evidence on
         record, agreed with the finding of motive and the last seen, however,
         insofar as the recovery of the weapon of assault and bloodstained
         clothes were concerned, the High Court in para 18 of the judgment held
         the same to be invalid and also goes to the extent to say that the
         recovery which has been made does not indicate that the appellant has
         committed the offence. Still, it observed that looking to the entire gamut
         and other clinching evidence against the appellant of last seen and
         motive, affirmed the conviction.

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         3.       We do not find such conclusion of the High Court to be strictly in
         accordance with law. In a case of circumstantial evidence, the chain has
         to be complete in all respects so as to indicate the guilt of the accused
         and also exclude any other theory of the crime. The law is well settled
         on the above point. Reference may be had to the following cases:


         (1) Sharad Birdhichand Sarda v. State of Maharashtra,
         (ii) Shailendra Rajdev Pasvan v. State of Gujarat.


         4.       Thus, if the High Court found one of the links to be missing and
         not proved in view of the settled law on the point, the conviction ought
         to have been interfered with.”


19.      In view of the settled law that one must look for a complete chain
of circumstances and not on snapped and scattered links which do not
make a complete sequence. 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; in the present
case, the chain is not completed.


20.      Furthermore, there is no eyewitness to the incident. Based on
suspicion, the complainant lodged an FIR against the present appellants,
and the arrest was made based on suspicion; there was no concrete
material against the appellants to prove his involvement in the
commission of crime and merely on the suspicion their involvement was
tried to be shown which cannot take the place of evidence. From the
evidence so produced by the prosecution and as examined by the learned
Sessions Court, the prosecution has failed to prove its case. Though the
prosecution has heavily relied upon the phone calls between the deceased

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and the accused; but location of the mobile phone calls were not found to
have been proved by the prosecution which also smacks a doubt on the
said piece of evidence. The conduct of the witnesses identifying the only
deceased who was accompanied with the accused prior to his murder also
comes under the cloud of doubt.


21.       In light of the above legal position and for the reasons recorded in
the foregoing paragraphs, coupled with the fact that the case of the
prosecution does not get support from the evidence recorded by the
learned Sessions Court, the present appeal deserves to be allowed and is
accordingly allowed. The judgment and order recording conviction and
sentence dated 12.08.2011 passed by the learned Additional Sessions
Judge, Bharuch in Sessions Case No.42 of 2009 for the offences
punishable under Sections 302, 120-B and 201 of the Indian Penal Code
is quashed and set aside.


21.1 The appellants are ordered to be set at liberty, forthwith, if not
required in any other case.


21.2 Bail Bond shall stand discharged. Records and Proceedings, if any,
be remitted to the Court concerned forthwith.


                                                                                            (ILESH J. VORA,J)




                                                                                         (R. T. VACHHANI, J)
sompura

 Original copy of this order has been signed by the Hon'ble Judges.
 Digitally signed by: MANISHKUMAR JYOTINDRA SOMPURA(HC00189), Principal Pvt. Secretary, at High Court of Gujarat on 16/01/2026 11:17:08




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