Gujarat High Court
Asim @ Munmun @ Asif Abdulkarim Solanki vs State Of Gujarat on 22 April, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/249/2019 JUDGMENT DATED: 22/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 249 of
2019
With
R/CRIMINAL APPEAL NO. 417 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
=========================================
Approved for Reporting Yes No
=========================================
ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI
Versus
STATE OF GUJARAT
=========================================
Appearance:
Criminal Appeal No. 249 of 2019
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1
Criminal Appeal No. 417 of 2019
MR VAIBHAV A VYAS(2896) for the Appellant(s) No. 1
In both Appeals:
MR BHARGAV PANYDA, APP for the Opponent(s)/Respondent(s)
No. 1
=========================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 22/04/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. The present case arises from Sessions Case No. 105/2013,
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decided by the learned Additional Sessions Judge, Botad, whereby
the appellant-accused Asim @ Munmun @ Asif Abdulkarimbhai
Solanki and Jasminbhai Bharatbhai Kothari were convicted for the
offence punishable under Section 302 read with Section 34
(alternatively Section 114) of the Indian Penal Code and Accused
No.2 was also convicted under Section 25(1)(B)(a) of the Arms Act,
1959. The learned Additional Sessions Judge sentenced both the
accused to undergo imprisonment for life and to pay a fine of
₹25,000/- each, in default to further undergo rigorous
imprisonment for six months for the offence under Section 302 r/w
34 IPC. Accused No.2 – Jasminbhai Bharatbhai Kothari was further
sentenced to undergo rigorous imprisonment for three years and to
pay a fine of ₹5,000/-, in default to further undergo simple
imprisonment for six months for the offence under the Arms Act.
Both the substantive sentences imposed upon Accused No.2 were
ordered to run concurrently.
Brief case of Prosecution:-
2. The case of the prosecution, in brief, is that on 04/03/2013 at
around 6:45 p.m., at Prince Hair Art salon situated in Shubham
Complex on the Paliyad Road, Botad, the deceased Kamleshbhai
Laghrabhai Bodiya was sitting on a chair. Due to previous enmity
arising out of a quarrel involving Bimal Shukla and a land
transaction dispute regarding Survey No.1013, the accused
persons, with common intention, committed his murder. Accused
No.2 – Jasminbhai Bharatbhai Kothari fired upon the deceased with
a revolver, while Accused No.1 – Asim @ Munmun @ Asif
Abdulkarimbhai Solanki assaulted the deceased with a farsi (axe-
like weapon) on his face and head, causing fatal injuries. The
accused persons robbed the licensed revolver and Apple mobile
phone worth approximately ₹30,000/- belonging to the deceased.
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They also threatened the complainant Khodabhai Raghubhai
Jogarana with death. The accused carried deadly weapons in
violation of the District Magistrate’s arms prohibition order. The
complainant, who was present near the scene of offence, witnessed
the occurrence and took the injured to Sonawala Hospital in a CNG
rickshaw, where he was declared dead.
2.1 It is the case of the prosecution that the accused persons, in
furtherance of their common intention and with the knowledge that
their acts were likely to cause death, intentionally caused the death
of Kamleshbhai Bodiya, thereby committing offences punishable
under Sections 302, 397, 506(2), 34/114 of the Indian Penal Code,
Section 135 of the Gujarat Police Act and Section 25(1)(B)(a) of the
Arms Act.
3. Upon registration of the FIR at Botad Police Station being
C.R. No.35/2013 under the aforesaid sections, the investigation
was carried out by the concerned police officer. The scene of
offence was visited, panchnamas were prepared in presence of
panch witnesses, inquest panchnama was drawn, postmortem was
conducted at Bhavnagar, statements of material witnesses were
recorded, identification parades of the accused were held, weapons
and other muddamal articles were recovered and seized, and
articles were sent to F.S.L. for examination. After receipt of the
F.S.L. reports and other evidence, charge-sheet was filed before
the learned Judicial Magistrate First Class, Botad. The case was
committed to the Court of Sessions, Bhavnagar under Section 209
Cr.P.C. and registered as Sessions Case No.105/2013, which was
later transferred to the Additional Sessions Court, Botad.
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4. The learned Additional Sessions Judge, Botad, after accused
persons pleaded not guilty and claimed to be tried, framed charges
against the accused under Sections 302, 397, 506(2), 34/114 of the
Indian Penal Code, Section 135 of the Gujarat Police Act and
Section 25(1)(B)(a) of the Arms Act and proceeded with the trial. In
order to establish the charges levelled against the accused, the
prosecution examined in all 34 witnesses and relied upon 56
documentary evidences including various panchnamas, postmortem
report, F.S.L. reports, identification parade panchnamas, map of
the scene of offence and other relevant documents.
5. In order to prove the charge, the prosecution examined as
many as 34 witnesses and exhibited 56 documents.
Oral Evidences:-
Sr.
Witness Name Role of the witnesses Exh.
No.
1 Devrajbhai Lakhmashibhai Panch Witness 130
2 Vipulbhai Jilubhai Panch Witness 151
3 Hareshbhai Lakhmanbhai Parmar Panch Witness 156
4 Ravikumar Aravindbhai Patel Panch Witness 160
5 Mahendrasinh Ajitsinh Jadeja Panch Witness 161
6 Mukeshbhai Kalyanbhai Jamod Panch Witness 165
7 Pasabhai Ambarambhai Thakor Panch Witness 166
8 Nileshbhai Dhirajlal Majethiya Panch Witness 187
9 Ashokbhai Valjibhai Gohil Panch Witness 190
10 Khimjibhai Khodabhai Mathodiya Panch Witness 193
11 Gopalbhai Amtharam Prajapati Exe. Magistrate – 220Page 4 of 54
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Sr.
Witness Name Role of the witnesses Exh.
No.
Identification Parade
12 Rameshbhai Kanjibhai Bhaliya Panch Witness 232
13 Dr. Amit Panabhai Parmar Medical officer 238
Panch Witness
14 Jayeshbhai Valjibhai Gohel 262
Dr. Bharatbhai Hargovindbhai
15 Medical officer (PM) 264
Chavda
16 Kundanbhai Jivrajbhai Golaniya Panch Witness 275
17 Narendrabhai Krishnalal Pandya Panch Witness 287
Nikunjbhai Narharibhai
18 FSL Scientific Officer 301
Brahmbhatt
19 Rafikbhai Habibbhai Sheikh Witness 304
20 Bhaveshbhai Vinubhai Kava Witness 305
21 Hiteshbhai Ranchhodbhai Maru CNG Rickshaw Driver 306
22 Jitubhai Kanubhai Sitapara Son of shop owner 307
23 Harshadbhai Kanubhai Sitapara Witness 308
24 Rameshbhai Amarsibhai Mekhiya Panch Witness 311
25 Bimalbhai Aravindbhai Shukla Witness 313
26 Ravaiyabhai Kutharbhai Gamit Panch Witness 316
Nephew of the
27 Bharatbhai Hanubhai Bodiya 321
Deceased
28 Khodabhai Raghubhai Jogarana Complainant 331
Yusufbhai Abdulkarimbhai
29 Witness 340
Chauhan
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Sr.
Witness Name Role of the witnesses Exh.
No.
30 Vinubhai Popatbhai Patel Collector 350
31 Karshanbhai Nathubhai Karangiya Police Officer 355
32 Vijaybhai Pratapbhai Thakor Witness 360
Dharmendrasinh Pravinsinh First Investigating
33 364
Vaghela officer
Second Investigating
34 Dineshsinh Mahavirsinh Chauhan 383
officer
Documentary Evidences:
Sr. Description of Documentary
Exh. No.
No. Evidence
132, 133, 152, 157,
1 Various Panchnamas
162, 175
2 132, 135 Arrest Panchnama
153 to 159, 163, 168
3 to 174, 176, 177, 192, Chits of Panchas signatures
195 to 217
4 167 Search Panchnama
5 188 Point Out Panchnama
6 191 Discovery Panchnama
7 194 Scene of Offence Panchnama
8 221, 222, 228 Police Yadi for Identification Parade
9 223, 226, 229 Identification Parade Panchnamas
Police Yadi for fixing date & time of
10 224, 225, 227
Identification Parade
11 233 FSL Officer's Spot Inspection Report
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Sr. Description of Documentary
Exh. No.
No. Evidence
12 234 Fax Messages
Postmortem Form of deceased
13 239
Kamleshbhai
Police Yadi for conducting PM of the
14 240, 241
dead body
Radiological Examination of the dead
15 242
body
16 243 PM Note of Kamleshbhai
Carbon copy of Yadi sending blood
17 245
sample to FSL
18 246 Letter from FSL Gandhinagar
19 253 to 258 X-ray Plates
20 263 Arms Prohibition Notification
21 265 MLC Case of deceased Kamleshbhai
22 266 Police Yadi informing MLC
Carbon copy of Yadi of Penal Dr. for
23 267
PM
Carbon copy of Yadi for taking blood
24 268
sample
MLC Case of accused Asim @
25 269
Munmun
Yadi for blood sample of accused
26 270
Asim
Police Yadi for medical examination
27 271
& blood sample
MLC Case of accused Jasminbhai
28 272
Kothari
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Sr. Description of Documentary
Exh. No.
No. Evidence
29 273 MLC Case of accused Shivkubhai
Yadi for blood samples of Jasminbhai
30 274
& Shivkubhai
FSL Gandhinagar Muddamal
31 276
forwarding note
Certificate of authority of Dy. SP
32 277
Botad
Receipt of muddamal received by
33 278
FSL Gandhinagar
FSL Gandhinagar Muddamal
34 282
Examination Report
Biology & Serology Examination
35 283
Report
36 288 PSI Botad letter for Inquest
Letter for preparing map of scene of
37 297
offence
38 298 Map of scene of offence
Mamlatdar Botad letter for producing
39 299 original record of Sessions Case
No.105/2013
Death certificate of Kanubhai
40 309
Dhudabhai Sitapara
Death certificate of Laghrabhai
41 322
Hathibhai Bodiya
42 332 Original Complaint dated 04/03/2013
43 333 Carbon copy of Police Yadi for
remaining present in Identification
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Sr. Description of Documentary
Exh. No.
No. Evidence
Parade
Station Diary Extract and Yadi for
44 341, 342
handing over investigation
45 343 Fax Messages
Police reports for sanction to file
46 351, 352
charge-sheet
Letter dated 24/05/2013 by In-charge
47 353
Dy. SP Botad
Order of District Magistrate,
48 354 Bhavnagar granting sanction for
charge-sheet
Finger Print Expert's Examination
49 365
Report
Carbon copies of Police Yadi for
50 366, 367
taking accused in custody
Police Yadi for entering description of
51 368
licensed revolver
Arms licence granted to deceased
52 369
Kamleshbhai by District Magistrate
Zerox copy of retail invoice of
53 370
revolver sold by deceased
Zerox copy of letter granting arms
54 371
licence to deceased
Police letter for preparing map of
55 384
scene of offence
Police Yadi for handing over custody
56 385, 386
for Identification Parade
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6. After the closure of the prosecution evidence, the statements
of the appellants-accused were recorded under Section 313 of the
Code of Criminal Procedure, 1973. In their statements, both the
appellants denied the entire incriminating material placed against
them and pleaded complete innocence. They specifically asserted
that they had no connection whatsoever with the alleged incident,
that the complainant was not an eye-witness, that the entire case
was got up and they were falsely implicated due to previous
enmity, that Accused No.1 was not even present at Botad on the
date of the incident.
Submissions of learned Senior Advocates for Appellants:-
7. The learned Senior Counsel Mr. Tejas Barot, appearing on
behalf of learned Advocate Mr. Vaibhav Vyas for appellant –
Accused No.2 Jasminbhai Bharatbhai Kothari, and the learned
Senior Advocate Mr. Harshit Tolia, appearing on behalf of Mr.
Parth Tolia for appellant – Accused No.1 Asim @ Munmun @ Asif
Abdulkarimbhai Solanki, submitted that the prosecution has
miserably failed to prove the guilt of the appellants beyond
reasonable doubt.
7.1 It was strenuously urged that the entire prosecution case
rests solely on the testimony of the complainant PW-28 Khodabhai
Raghubhai Jogarana, who is a close relative of the deceased and
therefore a highly interested and partisan witness. There is no
independent corroboration of his version. His deposition in court is
full of material omissions, improvements and contradictions when
compared with the original FIR and his earlier police statement.
Several crucial facts stated by him in his evidence were
conspicuously absent from the FIR.
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7.2 The learned Senior Counsels for the appellants further
submitted that the identification parades of both the appellants
conducted before the Executive Magistrate were vitiated due to
serious procedural lapses and prior exposure of the accused to the
witnesses. The FSL reports regarding the revolver, blood stains on
the farsi and other articles do not conclusively link the appellants
with the crime. Accused No.1 has raised a specific plea of alibi that
he was not present at Botad on the date of the incident, which has
not been effectively rebutted by the prosecution.
7.3 It was contended that the alleged motive regarding the
previous quarrel and the land dispute is too weak, vague and
general to sustain a conviction for murder. No recovery of the
robbed revolver or the mobile phone of the deceased has been
effected at the instance of either appellant. The chain of
circumstances sought to be proved by the prosecution is full of
gaps and does not lead to the only hypothesis of guilt. The
appellants are therefore entitled to the benefit of reasonable doubt
and deserve to be acquitted.
Submission of Learned APP:-
8. The learned APP Mr. Bhargav Pandya appearing for the State
strongly supported the judgment of conviction passed by the
learned Additional Sessions Judge, Botad. He submitted that the
prosecution has proved its case beyond reasonable doubt through
the reliable eye-witness account of the complainant, who had seen
the entire occurrence from a very close distance. His testimony is
duly corroborated by the medical evidence, the postmortem report,
the FSL reports showing blood on the farsi, the scene of offence
panchnama, the proved identification parades and the established
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motive of previous enmity and land dispute.
8.1 The learned APP contended that the defence of false
implication and the alibi raised by Accused No.1 are mere
afterthoughts and have not been supported by any cogent
evidence. The chain of circumstances proved by the prosecution is
complete and unbroken and points only towards the guilt of both
the appellants. The learned Sessions Court has rightly appreciated
the entire evidence on record and has correctly convicted the
appellants for committing the murder of Kamleshbhai Bodiya with
common intention. He therefore prayed that both the appeals be
dismissed.
Submissions of the Learned Advocate for the Accused no.1:-
9. The learned Senior Advocate Mr. Harshit Tolia, appearing for
appellant – Accused No.1 Asim @ Munmun @ Asif Abdulkarimbhai
Solanki, made exhaustive submissions on the plea of alibi raised by
his client right from the inception of the case. He submitted that
the appellant had consistently maintained, from the time of his
arrest itself, that he was not present at Botad on 04/03/2013 at the
time of the alleged incident and that he was, in fact, at Anand,
which is approximately 200 kilometers away from the scene of
offence. The appellant had categorically stated before the
Investigating Officer that he had no connection whatsoever with
the crime and that he had been falsely implicated due to previous
enmity. In order to verify the correctness of this plea, the
Investigating Officer had recorded statements of as many as 13
witnesses during the course of investigation. Both the Investigating
Officers, PW-33 Dharmendrasinh Pravinsinh Vaghela and PW-34
Dineshsinh Mahavirsinh Chauhan, have unequivocally admitted in
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their depositions before the learned sessions court that they had
examined the call detail records (CDR) and location details of the
mobile phone/SIM card used by the appellant, which clearly
indicated his presence at Anand at the relevant time when the
offence was committed at Botad.
9.1 It was further contended that the Investigating Officers had
recorded detailed statements of 13 independent witnesses who
confirmed the presence of the appellant at Anand on the date and
time of the incident. These witnesses included police personnel, a
vegetable vendor, a press reporter, an advocate, an estate broker,
and several other residents and drivers from Anand. Surprisingly,
none of these statements were produced along with the charge-
sheet, nor were the phone call details and location data placed
before the learned Sessions court. This deliberate suppression of
material evidence collected during investigation itself casts serious
doubt on the fairness of the prosecution. The learned Sessions
Judge, however, rejected the plea of alibi solely on the technical
ground that the appellant had not examined any independent
defence witnesses in support thereof, without appreciating that the
prosecution itself had collected cogent material supporting the alibi
but chose to withhold the same.
9.2 The learned Senior Advocate for appellant- accused no.1
submitted that even this Hon’ble Court, while rejecting the bail
application of the appellant, had observed that the burden to prove
the plea of alibi lies upon the accused, without considering that the
material in support of the alibi had already been gathered by the
Investigating Officers themselves. It was strenuously argued that in
a criminal trial, when the prosecution collects evidence which
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supports the defence of the accused but suppresses it, the accused
cannot be expected to lead defence evidence at his own peril,
especially when the burden of proof lies heavily on the prosecution
to prove its case beyond reasonable doubt. The appellant had even
volunteered to undergo Narco-analysis test to prove his innocence,
but the test could not be completed due to his deteriorating health
condition. Despite his repeated request before the learned Sessions
court for conducting the test again, the same was not effectively
pursued. These circumstances clearly demonstrate that the
appellant was genuinely attempting to prove his innocence from
the very beginning.
9.3 It was pointed out that the Hon’ble Supreme Court, while
disposing of Criminal Appeal No.184 of 2020 arising out of SLP
(Cri.) No.8087 of 2019 vide order dated 28/01/2020, had
specifically directed this Hon’ble High Court to hear the application
under Section 391 Cr.P.C. for leading additional evidence in
support of the plea of alibi at the earliest. Pursuant to the said
direction, this Hon’ble Court had allowed the application and
directed the learned Sessions Judge to record the additional
evidence of the 13 witnesses as well as the electronic evidence
relating to the mobile phone and SIM card of the appellant. The
additional evidence so recorded clearly establishes that the
appellant was present at Anand at the time of the incident and
therefore could not have participated in the commission of the
alleged offence at Botad.
9.4 The following witnesses were examined by the Investigating
Officer in support of the plea of alibi of the appellant:
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Sr.
Name of Witness Occupation
No.
1 Kiritsinh Narendrasinh Chudasama SOG Police Constable
Hiteshkumar Rughnathbhai LCB Police Sub-
2
Brahmbhatt Inspector
3 Sanjaykumar Dayarambhai Parmar LCB Police Constable
Vegetable Vendor,
4 Jigarbhai Maganbhai Khoja
Anand
Mahendrabhai @ Bindu Nandkishor
5 Resident of Anand
Bhati
6 Ashok Dharmanand Parshuram Press Reporter
7 Samadbhai Usmanbhai Vora Estate Broker
8 Maheshbhai Dhulabhai Makwana Advocate
9 Ravindrabhai Shashikantbhai Parmar Businessman
10 Riyajbhai Ibrahimbhai Vora Businessman
11 Inayat Iliyasbhai Multani Student
12 Idrishmiya Ahmedmiya Sheikh Driver
13 Aabidbhai Mehboobbhai Solanki Driver
9.5 The learned Senior Advocate for accused no.1 prayed that the
plea of alibi raised by the appellant be accepted in its entirety and
he be acquitted on this ground alone, as his presence at a distant
place stands proved by the very material collected by the
prosecution during investigation as well as by the additional
evidence recorded pursuant to the orders of this Hon’ble Court and
the Hon’ble Supreme Court.
9.6 It was further submitted that the plea of alibi raised by
Accused No.1 is not a feeble or belated defence, but one that wasPage 15 of 54
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consistently taken from the very beginning of the investigation. The
fact that the Investigating Officers themselves recorded statements
of 13 witnesses and collected CDR/location data confirming the
appellant’s presence at Anand, and yet suppressed this material
while filing the charge-sheet, demonstrates a serious lapse on the
part of the prosecution. The learned sessions court committed a
grave error in discarding this plea merely on the ground that the
appellant did not lead defence evidence, especially when the
prosecution itself had gathered evidence in support of the alibi but
deliberately withheld it from the Court.
9.7 The learned Senior Advocate emphasized that the appellant
had gone to the extent of volunteering for a Narco Analysis test
during the course of investigation in order to substantiate his
innocence and plea of alibi. Though the test was initiated, it had to
be terminated midway due to the appellant’s deteriorating health
condition. Despite the appellant’s repeated request before the
learned sessions court to conduct the test afresh, and even after an
order was passed in that regard, the same was not effectively
carried out. This conduct of the appellant further strengthens his
bona fide plea of alibi and shows his eagerness to prove that he was
nowhere near the scene of offence at the relevant time.
9.8 It was urged that in view of the directions issued by the
Hon’ble Supreme Court in Criminal Appeal No.184 of 2020 and the
subsequent order passed by this Hon’ble High Court allowing the
application under Section 391 Cr.P.C., the additional evidence
recorded by the learned Sessions Judge clearly establishes the
presence of the appellant at Anand on 04/03/2013. The cumulative
effect of the statements of the 13 witnesses, the CDR/locationPage 16 of 54
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details, and the additional evidence now on record leaves no room
for doubt that the appellant could not have been present at Botad
at the time of the alleged incident. Therefore, the conviction of
Accused No.1 based on the identification by the complainant and
the alleged common intention is unsustainable and deserves to be
set aside on the ground of proved plea of alibi alone.
9.9 In light of the above submissions, the learned Senior
Advocate prayed that the appeal preferred by Accused No.1 be
allowed, his conviction and sentence recorded by the learned
Additional Sessions Judge, Botad be quashed and set aside, and he
be acquitted of all the charges levelled against him.
10. The learned Senior Advocate Mr. Harshit Tolia, appearing for
the appellant – Accused No.1 Asim @ Munmun @ Asif
Abdulkarimbhai Solanki, made detailed and exhaustive submissions
contending that the prosecution has miserably failed to prove the
guilt of the appellant beyond reasonable doubt. He submitted that
the entire case of the prosecution is built upon the shaky
foundation of the solitary testimony of the complainant PW-28
Khodabhai Raghubhai Jogarana at Exh.331, who is example of a
chance witness, a related witness, and a highly interested and
partisan witness. His presence at the scene of offence itself is
doubtful and his testimony is unreliable, untrustworthy, and full of
material contradictions and improvements.
10.1 It was submitted that immediately after the incident, the
complainant had shifted the deceased Kamleshbhai in a CNG
rickshaw to Sonawala Hospital, Botad, and his own clothes were
heavily stained with blood. However, astonishingly, the blood-
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stained clothes of the complainant were never seized by the police
nor produced before the Court during the entire trial. This conduct
is highly unnatural and creates serious doubt about the credibility
of the complainant. The complainant being a chance witness, his
evidence requires strict and careful scrutiny. In support of this
submission, reliance was placed upon Bhimappa v. State of
Karnataka (2006) 11 SCC 323, Khima Vikamshi v. State of
Gujarat (2003) 9 SCC 420 and Vanravan Anandji v. State of
Gujarat (2001) 2 GLH 570.
10.2 The learned Senior Advocate for appellant- accused no.1
further submitted that the complainant is a highly unreliable and
untrustworthy witness. He has clearly admitted in his cross-
examination that he did not know the name of Accused No.1 (Asif
@ Munmun) at the time of the incident and only mentioned him as
unidentified man and did not give any sort of explanations as to his
appearance and had not identified him. The name of Accused No.1
was later told to him by Budhabhai @ Vashrambhai, who was
accompanying the complainant at the time of the incident and had
also helped in shifting the deceased to the hospital. However, the
prosecution has deliberately not examined this crucial witness
Budhabhai @ Vashrambhai, which creates a major lacuna in the
prosecution case.
10.3 There are material contradictions and improvements in the
evidence of the complainant, particularly with regard to the
weapons used, the sequence of events, and the role attributed to
Accused No.1. His version regarding the weapons is inconsistent
and self-contradictory. The complainant was examined at a highly
belated stage on 20.12.2017 as PW-28 and his evidence was
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completed only on 12.01.2018. This belated examination raises
strong suspicion that his evidence was improved and tailored
subsequently to make it consistent with the prosecution case and to
ensure the conviction of the accused. The learned sessions Judge
has also noted the existence of contradictions in the complainant’s
evidence.
10.4 It was pointed out that the incident occurred in broad
daylight in a thickly populated area of Botad near Shubham
Complex, where several shops, offices, and public places are
situated and a large number of people had gathered. Despite this,
the prosecution has not examined even a single independent
witness. The total absence of independent corroboration is fatal to
the prosecution case. Even Hanubhai, a close relative of the
deceased who was present at the hospital along with the
complainant, has not been examined by the prosecution.
10.5 The learned Senior Advocate for Appellant- Accused no.1
submitted that the manner of incident as projected by the
prosecution is highly improbable and unnatural. The genesis of
occurrence and the manner in which the incident is alleged to have
taken place cannot be believed. The prosecution story does not
inspire confidence looking to the evidence, circumstances and facts
of the case. Reliance was placed on Anjali Singh v. State of Uttar
Pradesh 2026 INSC 3, wherein the Hon’ble Supreme Court has
held that when the manner of incident projected by the prosecution
appears to be unnatural, improbable and not in consonance with
the normal course of human conduct, the Court must be extremely
cautious before relying upon such evidence.
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10.6 The learned Senior Advocate for Appellant- Accused no.1
further submitted that the charge of robbery (looting of revolver
and mobile phone) has been disbelieved by the learned sessions
Judge himself. No recovery of the alleged looted articles has been
made from the appellant. The FSL reports further falsify the
prosecution story. No blood stains of the appellant were found on
any weapon. The blood group found on the farsi does not match
with the blood group of the appellant. No blood stains were found
on the gupti. These scientific findings completely demolish the case
of the prosecution.
10.7 Regarding the Test Identification Parade at Exh.223 of
Accused No.1 conducted on 11.03.2013, it was submitted that the
same is wholly unreliable and vitiated. The appellant was arrested
on 06.03.2013 and was taken to various places including
Vallabhipur Civil Hospital, Anand, and Ahmedabad Civil Hospital
during the remand period without being kept in baparda. There
was every possibility of the complainant seeing the appellant
before the TI Parade. The description of dummies is not mentioned
in the panchnama. The panchas of the TI Parade have not been
examined. There is also a delay of 7 days in holding the TI Parade.
The evidence of TI Parade is not substantive evidence and carries
no weight in law. Reliance was placed on several judgments
including State of Gujarat v. Ramsevak Geyadin Pandit,
Rakeshsing Jagjyotsing Christian v. State of Gujarat and
State of Maharashtra v. Syed Umar Sayed Abbas (2016) 4
SCC 735.
10.8 The learned Senior Advocate for Appellant- Accused no.1
submitted that the evidence of the Investigating Officers PW-31 PSI
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Karangiya at Exh.355, PW-33 Shri Vaghela at Exh.366, and PW-34
Shri Chauhan at Exh.383 further falsifies the prosecution case
regarding the presence of the appellant at the scene of offence. The
complaint was recorded at 11:00 pm, nearly four hours after the
incident. Till then, the names of the culprits were not disclosed by
anyone. Even the history of the incident was not narrated to the
police. The inquest panchnama was prepared before recording the
complaint. All these circumstances clearly show that the complaint
is a got-up and concocted document prepared at a belated stage.
10.9 It was emphatically submitted that the appellant has
successfully proved his plea of alibi. At the time of the incident on
04/03/2013, the appellant was very much present at Anand, which
is around 200 km away from Botad. This plea was raised from the
very inception. The Investigating Officers had recorded statements
of 13 witnesses and collected CDR/location data confirming his
presence at Anand. However, this material was deliberately
suppressed by the prosecution. Pursuant to the orders of the
Hon’ble Supreme Court and this Hon’ble High Court, additional
evidence has been recorded which clearly establishes the plea of
alibi. The appellant had even volunteered for Narco Analysis test,
but the same was not properly conducted. Reliance was placed on
Jayantibhai Bhenkarbhai v. State of Gujarat (2002) 8 SCC
165 and Jagdish Gond v. State of Chhattisgarh (2025 INSC
460).
10.10 In conclusion, the learned Senior Advocate for Appellant-
Accused no.1 prayed that in view of the aforesaid submissions, the
appeal preferred by Accused No.1 be allowed, the judgment and
order of conviction and sentence passed by the learned Additional
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Sessions Judge, Botad be quashed and set aside, and the appellant
be acquitted of all the charges levelled against him by granting him
the benefit of doubt.
Submissions of the Learned Advocate for the Accused no.2:-
11. The learned Senior Counsel Mr. Tejas Barot, appearing on
behalf of learned Advocate Mr. Vaibhav Vyas for appellant –
Accused No.2 Jasminbhai Bharatbhai Kothari, submitted that the
prosecution has miserably failed to prove the guilt of Accused No.2
beyond reasonable doubt. He contended that the entire prosecution
evidence is of extremely poor quality, lacks credibility and
trustworthiness, and is wholly insufficient to sustain the conviction
of the appellant under Section 302 read with Section 34 IPC and
under the Arms Act.
11.1 It was strenuously urged that the prosecution has relied
entirely upon the testimony of the complainant PW-28 Khodabhai
Raghubhai Jogarana, who is a chance witness, a related witness
and a highly interested and partisan witness. The presence of this
solitary eye-witness at the place of incident itself is highly doubtful
and suspicious. The genesis and manner of incident as projected by
the prosecution is unnatural, improbable and does not inspire any
confidence. In the absence of any cogent, reliable and independent
evidence, the accused cannot be convicted on such shaky and
unreliable evidence and is entitled to the benefit of doubt. Reliance
was placed on Arshad Hussain v. State of Rajasthan (2013)
SCC 104 and Pankaj v. State of Rajasthan (2016) 16 SCC 192.
11.2 The learned Senior Counsel submitted that even if the
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prosecution case is taken at its highest, there is no cogent, credible
or legally acceptable evidence to connect Accused No.2 with the
actual commission of the offence or his presence at the scene of
incident. The prosecution has alleged that Accused No.2 fired upon
the deceased with a revolver. However, the revolver allegedly used
in the offence has never been recovered during the entire
investigation despite permission for further investigation being
granted by this Hon’ble Court. It is a settled principle of law that
mere recovery of a weapon or article cannot be the sole basis of
conviction in the absence of any cogent evidence connecting the
appellant to the commission of the offence or the scene of incident.
Reliance was placed on Govind v. State of Haryana, wherein the
Hon’ble Supreme Court has held that in the absence of any cogent
evidence to connect the accused with the commission of the offence
or the scene of incident, mere recovery of the weapon cannot form
the sole basis of conviction.
11.3 It was further contended that the prosecution has miserably
failed to establish that the alleged recovery distinctly relates to the
commission of the offence or that the weapon so recovered was the
same which was used to commit the murder. The chain of recovery
linking the seizure, storage, sealing, forwarding and deposit of the
material exhibits remains incomplete and was not duly proved by
the prosecution. Though the FSL report indicates that the pistol
and cartridges recovered correlate with the bullets found in the
body of the deceased, such evidence by itself is not sufficient to
establish the appellant’s guilt in the absence of any proof that the
recovered pistol was indeed used in the commission of the offence.
The link between the recovered weapon and the actual user by the
appellant is totally missing. The prosecution has not been able to
prove beyond reasonable doubt that the pistol allegedly recovered
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was the same weapon which was used by Accused No.2 in the
commission of the crime.
11.4 The learned Senior Counsel submitted that the FSL report
and the ballistic expert’s opinion cannot be read in isolation.
Scientific evidence can only corroborate other reliable evidence. In
the present case, there is no reliable ocular evidence or any other
corroborative circumstance connecting Accused No.2 with the
actual firing or his presence at the scene of offence. In the absence
of any trustworthy direct or circumstantial evidence, the scientific
evidence regarding the pistol and cartridges loses its probative
value and cannot form the basis of conviction. The prosecution has
failed to prove the complete chain from the alleged use of the
weapon by the appellant to its recovery and subsequent opinion by
the ballistic expert.
11.5 It was emphasized that the entire prosecution story suffers
from serious infirmities, contradictions and improbabilities. The
manner in which the incident is alleged to have occurred does not
stand to reason. The evidence on record does not inspire
confidence and creates reasonable doubt in the mind of the Court.
When two views are possible on the evidence on record, the view
which is favourable to the accused must be adopted. The appellant
is entitled to the benefit of doubt on every count.
11.6 In conclusion, the learned Senior Counsel prayed that in view
of the aforesaid submissions and the judgments relied upon, the
appeal preferred by Accused No.2 be allowed, the judgment and
order of conviction and sentence passed by the learned Additional
Sessions Judge, Botad be quashed and set aside, and the appellant
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be acquitted of all the charges levelled against him by granting him
the benefit of doubt.
Submissions of learned APP:-
12. The learned APP Mr. Bhargav Pandya strongly supported the
judgment and order of conviction passed by the learned Additional
Sessions Judge, Botad. He submitted that the prosecution has
proved its case beyond reasonable doubt through the trustworthy
and reliable eye-witness account of the complainant PW-28
Khodabhai Raghubhai Jogarana, who had seen the entire
occurrence from a very close distance.
12.1 It was submitted that the recovery of the weapon used in the
commission of the offence is not a sine qua non for conviction. The
accused can be convicted even in the absence of recovery of the
weapon, if there is direct and reliable evidence in the form of an
eye-witness. In the present case, the complainant is an eye-witness
to the actual incident and has clearly deposed about the overt acts
committed by both the accused. Reliance was placed on State
through The Inspector of Police v. Laly @ Manikandan &
Another, wherein the Hon’ble Supreme Court has held that
recovery of the weapon used in the commission of offence is not
essential for conviction. The accused can be convicted on the basis
of direct evidence of an eye-witness even in the absence of
recovery of the weapon.
12.2 The learned APP further contended that merely because
there are some contradictions with respect to the timing of lodging
of the FIR or minor inconsistencies in the evidence, the same
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cannot be a ground to discard the testimony of the eye-witness.
When the prosecution case is primarily based upon the deposition
of a trustworthy and reliable eye-witness, the Court can base
conviction on such evidence. In the present case, there is no reason
to doubt the credibility and reliability of PW-28 – complainant. He
had no enmity with the accused and had no reason to falsely
implicate them. His presence at the scene of offence is natural and
probable.
12.3 It was emphasized that the evidence of the complainant is
duly corroborated by the medical evidence, the postmortem report
showing fatal injuries, the FSL reports, the scene of offence
panchnama and the proved motive. The chain of circumstances is
complete and points only towards the guilt of both the appellants.
The defence of false implication and the plea of alibi raised by
Accused No.1 are mere afterthoughts and have not been supported
by any cogent or reliable evidence. The learned sessions court has
rightly appreciated the entire evidence on record and has correctly
convicted both the appellants for committing the murder of
Kamleshbhai Bodiya with common intention.
12.4 The learned APP therefore prayed that both the appeals
deserve to be dismissed and the judgment and order of conviction
and sentence passed by the learned Additional Sessions Judge,
Botad be confirmed.
Evaluation of ocular evidence in nutshell:-
13. The prosecution has examined in all 34 witnesses, whereas the
accused persons did not examine any witness in their defence. As
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discussed in the presiding paragraphs, the entire case of the
prosecution rests solely upon the testimony of the sole and prime
eye-witness, namely Khodabhai Raghubhai Jogarana, who has been
examined as PW-28 at Exh.331. He is not only the complainant but
also claims to be the sole eye-witness to the incident. As per his
deposition, on 04/03/2013 at around 6:30 to 6:45 p.m., while he
was proceeding towards Gurudattatreya Ashram along with his
friend Budhabhai @ Vashrambhai on a motorcycle, he heard two
gunshots near Shubham Complex on the Paliyad Road, Botad. Upon
reaching Prince Hair Art salon, he saw the deceased Kamleshbhai
Laghrabhai Boliya sitting on a chair in a heavily bleeding condition.
Accused No.2 Jasminbhai Bharatbhai Kothari was standing there
holding a revolver/pistol in his hand, while Accused No.1 Asim @
Munmun @ Asif Abdulkarimbhai Solanki was holding a farsi. The
deceased was pleading with the accused persons for mercy.
According to the complainant, Accused No.2 Jasminbhai fired at the
deceased from a close range and also threatened the complainant
by saying that he would be killed if he raised any alarm. Thereafter,
both the accused dragged the injured Kamleshbhai outside the
salon, where Accused No.1 Asim @ Munmun inflicted multiple
severe blows with the farsi on the face and head of the deceased.
The accused persons then allegedly robbed the licensed revolver
and Apple mobile phone of the deceased and fled from the scene in
a white car. The complainant immediately took the injured
Kamleshbhai with the help of Budhabhai in a CNG rickshaw to
Sonawala Hospital, Botad, where the doctor declared him dead.
13.1 In his cross-examination, the complainant admitted several
important facts which have a material bearing on the credibility of
his testimony. He admitted that he is a close relative of the
deceased. He further admitted that Budhabhai @ Vashrambhai,
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who was accompanying him at the time of the incident and had also
helped him in shifting the injured to the hospital, has not been
examined by the prosecution. He conceded that he did not know
the name of Accused No.1 (Asim @ Munmun) prior to the incident
and that the name was disclosed to him by Budhabhai @
Vashrambhai. He also admitted that several important facts which
he has stated in his court deposition were not mentioned in the
original FIR. Significantly, he admitted that though his own clothes
were heavily stained with blood when he took the deceased to the
hospital, those blood-stained clothes were never seized by the
police nor produced before the Court during the trial.
14. As per the deposition of PW-27 Bharatbhai Hanubhai Bodiya
at Exh.321, nephew of the deceased, deposed that on 04/03/2013 at
around 7:00 p.m., while he was at his cable office, he received a
phone call from the complainant informing him that Kamleshbhai
had been attacked at Prince Hair Art salon. He immediately rushed
to Sonawala Hospital and saw multiple injuries on the head, face,
right chest, right shoulder and left shoulder of his uncle. The
complainant narrated to him that Jasminbhai had fired with a
revolver and Accused no.1 – Asim @ Munmun had assaulted with a
farsi. He also stated that there was previous enmity between the
accused and the deceased on account of a quarrel involving Bimal
Shukla and a land transaction dispute. In cross-examination, he
admitted that he had no personal knowledge of the incident except
what was told by the complainant.
15. As per the deposition of PW-21 Hiteshbhai Ranchhodbhai
Maru at Exh.306, the CNG rickshaw driver, deposed that on the
evening of 04/03/2013, while he was near Shubham Complex, the
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complainant stopped him and asked him to take the injured to the
hospital. He saw Kamleshbhai being placed in the rickshaw. The
complainant and another person accompanied the injured. He
drove them to Sonawala Hospital. He stated that the clothes of the
complainant and the injured were stained with blood. In cross-
examination, he admitted that he knew the complainant and the
deceased from before as they belonged to the same community.
16. As per the deposition of PW-33 Dharmendrasinh Pravinsinh
Vaghela at Exh.364, the first Investigating Officer, deposed that
upon receiving information of the incident, he reached Sonawala
Hospital, recorded the complaint of Khodabhai, prepared the
inquest panchnama, visited the scene of offence, seized the blood-
stained farsi, revolver holster and other articles, recorded
statements of witnesses, arranged identification parades of the
accused and forwarded the muddamal to FSL. He admitted in his
cross-examination that the appellant Asim @ Munmun had raised
the plea of alibi from the very beginning, that he had recorded
statements of 13 witnesses from Anand confirming the presence of
the appellant at Anand at the relevant time, and that he had also
collected CDR details showing the location of the appellant’s
mobile phone at Anand.
17. As per the deposition of PW-34 Dineshsinh Mahavirsinh
Chauhan at Exh.383, the second Investigating Officer who filed the
charge-sheet, deposed that after taking over the investigation, he
recorded further statements, arranged identification parades,
collected FSL reports and submitted the charge-sheet. In his cross-
examination, he admitted that during the course of investigation,
statements of 13 witnesses from Anand were recorded who had
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stated about the presence of Accused No.1 at Anand on the date of
the incident, and that CDR details of the appellant’s mobile phone
also showed his location at Anand. He further admitted that these
statements and CDR details were not produced along with the
charge-sheet.
18. As per the deposition of PW-18 Nikunjbhai Narharibhai
Brahmbhatt at Exh.301, the FSL Scientific Officer, deposed that he
examined the muddamal articles sent by the police. He found
human blood of Group ‘O’ on the farsi which matched the blood
group of the deceased. He also examined the revolver holster,
bullets and other articles. In cross-examination, he admitted that
no blood stains of the blood group of the appellants were found on
any article and that the farsi did not contain any blood stains.
19. As per the deposition of DW.-01 Ravindrabhai Shashikantbhai
Parmar a resident of Anand and a construction businessman,
deposed that he had known Accused No.1 Asim @ Munmun @ Asif
Abdulkarimbhai Solanki since the year 2013 and that both of them
were business partners in a construction firm for the last five years
prior to the incident. He stated that on 04/03/2013, he had spoken
with Asim on the telephone on 5 to 6 occasions during the day. At
around 3:00 p.m., when he had to go to the Court, he met Asim at
the LCB Office in Anand. Thereafter, at around 6:00 p.m. in the
evening, he again met Asim near Mahakali Temple situated
adjacent to the LCB Office in Anand. At that time, several other
persons including Ashokbhai Dharmanand – Press Reporter, Retired
Dy.S.P. Brahmbhatt, Najubhai – Advocate, Samatbhai Vora – Estate
Broker, Police Constable Kiritsinh Chudasama and others were also
present at the said place. He remained there for about 30 to 45
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minutes and thereafter returned to his house. He further deposed
that the police had come to Anand and recorded his statement
regarding the presence of Asim on the date of the incident and that
he had identified Asim in the Court as the same person. The sum
and substance of the deposition of the aforesaid witness where plea
of alibi culminatively states that all the witnesses have been
examined by the Special public prosecutor.
19.1 In the cross-examination conducted by the learned Special
Public Prosecutor, all the alibi witnesses fairly conceded that some
of them had a very close and personal relationship with the
appellant – Asim @ Munmun @ Asif Abdulkarimbhai Solanki, while
others had business relations with him for several years. It further
transpires from their cross-examination that these witnesses were
fully aware that Asim @ Munmun was involved in a murder case
registered at Botad. They also admitted that during the course of
inquiry and investigation, their statements were recorded by the
police in the presence of Asim @ Munmun himself. However, when
suggestions were put to them by the learned Special Public
Prosecutor that they were giving false statements and false
evidence in order to save the appellant, all the witnesses stoutly
denied the same. They reiterated that whatever they had stated in
their evidence was true and correct.
20. We have heard the learned Senior Counsels and the learned
APP for the State at length. We have meticulously gone through the
entire oral and documentary evidence on record, the impugned
judgment and order dated 03/11/2018 passed by the learned
Additional Sessions Judge, Botad, the original record and
proceedings of the trial court, and the additional evidence recorded
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pursuant to the order under Section 391 Cr.P.C.
20.1 The prosecution case primarily rests upon the testimony of
the solitary eye-witness PW-28 Khodabhai Raghubhai Jogarana.
After a careful and thorough scrutiny of his deposition, we find that
his presence at the scene of offence is natural and probable. He has
given a vivid, consistent and detailed account of the entire
occurrence. He claimed to have identified both the accused persons
in the Court and has attributed specific overt acts to each of them
firing by Accused No.2 Jasminbhai with a revolver and multiple
farsi blows by Accused No.1 Asim @ Munmun on the face and head
of the deceased. His evidence finds substantial corroboration from
the medical evidence, the postmortem report showing multiple
firearm and incised injuries, the FSL reports, the scene of offence
panchnama, and the proved motive only to the extent of role
attributed to the Accused no. 2, the relevancy of which is discussed
as under.
21. In the above context, Accused No.1 – Asim @ Munmun @ Asif
Abdulkarimbhai Solanki has raised a specific, consistent and
plausible plea of alibi from the very inception of the case. He has
asserted that on 04/03/2013 he was not present at Botad but was at
Anand, nearly 200 km away. Both the Investigating Officers PW-33
Dharmendrasinh Pravinsinh Vaghela and PW-34 Dineshsinh
Mahavirsinh Chauhan have categorically admitted in their cross-
examination that during the course of investigation they had
recorded statements of 13 witnesses from Anand who confirmed
the presence of the appellant at Anand at the relevant time. They
had also collected CDR and location details of the appellant’s
mobile phone which showed his presence at Anand. Surprisingly,
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none of these statements or CDR details were produced along with
the charge-sheet. This deliberate suppression of material evidence
collected by the prosecution itself creates serious doubt about the
fairness and completeness of the investigation.
Plea of Alibi:-
22. The Latin word alibi means “elsewhere,” and the term is used
for convenience when an accused takes the defence that, at the
time of the occurrence, he was so far away from the place of
incident that it is highly improbable for him to have participated in
the crime.
22.1 Keeping in mind the principle governing the plea of alibi, the
same is required to be appreciated having regard to the material
placed on record. It is pertinent to note that the plea of alibi is not
a part of the general exceptions under the IPC; rather, it is a rule of
evidence under Section 11 of the Indian Evidence Act, 1872.
22.2 It is further required to be placed on record that merely
because the plea of alibi is taken, it does not lessen the burden of
the prosecution to prove that the accused was present at the scene
of the offence and had participated therein. Thus, the sum and
substance of the aforesaid is that the plea of alibi is to be
considered only after the prosecution has satisfactorily discharged
its burden.
22.3 Moreover, when a plea of alibi is raised, a heavy burden is
cast upon the person asserting it to establish the same by leading
cogent and satisfactory evidence, or by referring to material on
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record, including the investigation papers, so as to completely
exclude the possibility of the presence of the accused at the place
of occurrence. In short, a standard of “strict scrutiny” is required
when such a plea is raised.
22.4 In continuation of the aforesaid, as emerging from the case of
the prosecution, it is an admitted fact that the complainant, namely
prosecution witness Khodabhai Raghubhai Jogarana, has deposed
that at the place of occurrence, accused No. 2 fired upon the
deceased, resulting in his death, and was accompanied by an
unknown person. The said witness has claimed that he could not
identify but had only recognized the said person. However,
according to the witness, the information regarding the identity of
the appellant-accused No. 1 was received from another
prosecution witness, namely Budhabhai @ Vashrambhai, who
allegedly disclosed the name of the appellant-accused No. 1.
22.5 It further emerges that, on the basis of such information, the
accused came to be arrested. However, from the very inception,
accused No. 1 has raised the plea of alibi, asserting his absence
from the scene of offence, which led to the recording of statements
of several witnesses from Anand, where the appellant-accused No.
1 was residing.
22.6 It also transpires that the test identification parade
conducted by the Investigating Officer appears to have been
carried out at a belated stage, after the appellant-accused No. 1
had already been shown. The appellant has contended that the
possibility of prior disclosure of his identity cannot be ruled out,
and therefore, such identification exercise must be treated as
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doubtful and unreliable.
22.7 It further transpires that, except for the complainant, none of
the witnesses have been examined to establish the presence of the
appellant-accused No. 1 at the scene of offence. Nor does it appear
that the Investigating Officer made any effort to verify or scrutinize
the presence of the accused by examining persons residing in the
vicinity of the place of occurrence.
22.8 The most crucial issue that arises for determination in these
appeals is the plea of alibi raised by Accused No.1 – Asim @
Munmun @ Asif Abdulkarimbhai Solanki. The plea of alibi is a rule
of evidence embodied under Section 11 of the Indian Evidence Act,
1872 and not a general exception under the Indian Penal Code. The
Supreme Court has consistently held that taking a plea of alibi does
not dilute the burden of the prosecution to establish the guilt of the
accused beyond reasonable doubt. The prosecution must first
discharge its primary burden of proving that the accused was
present at the scene of crime and participated in the offence. Only
thereafter does the court examine the defence plea of alibi.
22.9 After careful appreciation of the said additional evidence
along with the cross-examination of the two Investigating Officers,
we find that the plea of alibi raised by Accused No.1 has been
sufficiently established on the touchstone of preponderance of
probabilities. The prosecution has not been able to lead any cogent,
reliable or independent evidence to rebut the same. The additional
evidence clearly demonstrates that the appellant no.1 was present
at Anand at the time of the incident. In view of the proved plea of
alibi, the presence of Accused No.1 at the scene of offence becomes
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highly doubtful.
22.10 The identification of Accused No.1 by the complainant,
therefore, becomes unreliable and unsafe to base a conviction
upon.
22.11 Thus, in view of the aforesaid discussion in detail and in
consideration of the evidence of the witnesses examined, the 13
witnesses produced by the defence have clearly established the
plea of alibi raised by the appellant-accused No.1. Their statements
were subjected to detailed cross-examination by the prosecution.
However, nothing contrary to the said plea has been brought on
record by the prosecution so as to create any doubt regarding the
plea of alibi of the appellant No.1. We, therefore, find considerable
force in the submissions advanced on behalf of the accused No.1
with regard to the plea of alibi, which, as discussed above, stands
duly established.
22.12 The plea of alibi raised by the accused No.1 is not only
supported by the deposition of the Investigating Officer, who
admitted in his evidence that he had recorded the statements of the
13 independent witnesses, but the said statements were not placed
on record by him despite the said admission. These 13 witnesses
included police personnel, vegetable vendors, businessmen and
other persons from Anand. The failure of the Investigating Officer
to place the material evidence collected during the course of
investigation on record amounts to a serious dereliction of duty and
raises grave doubt about the fairness of the prosecution.
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22.13 Be that as it may, it must also be placed on record that not
only the Investigating Officer but also the learned Public
Prosecutor/Special Public Prosecutor, who represented the
prosecution, remained a silent spectator even though the said fact
was clearly reflected in the deposition of the prosecution witness.
Even the learned Sessions Court, during the trial, when the
complete absence of the appellant-accused No.1 from the scene of
occurrence was disclosed in the deposition, acted as a mere
spectator instead of directing the concerned parties to place the
said material on record so as to enable the Court to arrive at a just
and proper conclusion.
22.14 The same aspects has been dealt in Kamal Prasad v. State
of Madhya Pradesh (2023 (SC) 891), Pappu Tiwary v. State of
Jharkhand (2022 SC 107) and in Jagdish Gond v. State of
Chhattisgarh (2025 (SC) 409).
22.15 In the present case, Accused No.1 raised the plea of alibi
from the very inception of the case. Both the Investigating Officers
have admitted that they recorded statements of 13 witnesses from
Anand and collected CDR/location data showing the appellant’s
presence at Anand at the relevant time. This material was,
however, deliberately suppressed and not produced with the
charge-sheet. Pursuant to the directions of the Hon’ble Supreme
Court and this Court, additional evidence has been recorded. After
appreciating the same, we find that the plea of alibi stands
sufficiently established on the touchstone of preponderance of
probabilities. The prosecution has failed to rebut it. Accused No.1
is, therefore, entitled to the benefit of doubt and acquittal.
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23. The evaluation of the evidence has been made and discussed in
detail in the preceding paragraphs and to avoid the repetition the
same has been dealt with as per the relevancy.
23.1 So far as Accused No.2 – Jasminbhai Bharatbhai Kothari is
concerned in context as discussed in the foregoing paragraphs
after evaluating the evidence of in all 34 witnesses, on which the
whole case of the prosecution rest upon sole testimony of the
Khodabhai who has been examined again at the cost of repetition
to narrate and describe as deposed by this witness who has been
examined as PW-28 at Exh.331. He is not only the complainant but
also claims to be the sole eye-witness to the incident. As per his
deposition, on 04/03/2013 at around 6:30 to 6:45 p.m., while he
was proceeding towards Gurudattatreya Ashram along with his
friend Budhabhai @ Vashrambhai on a motorcycle, he heard two
gunshots near Shubham Complex on the Paliyad Road, Botad. Upon
reaching Prince Hair Art salon, he saw the deceased Kamleshbhai
Laghrabhai Boliya sitting on a chair in a heavily bleeding condition.
Accused No.2 Jasminbhai Bharatbhai Kothari was standing there
holding a revolver/pistol in his hand, while Accused No.1
unidentified person was holding a farsi. The deceased was pleading
with the accused persons for mercy. According to the complainant,
Accused No.2 Jasminbhai fired at the deceased from a close range
and also threatened the complainant by saying that he would be
killed if he raised any alarm. Thereafter, both the accused dragged
the injured Kamleshbhai outside the salon, where Accused No.1
unidentified person inflicted multiple severe blows with the farsi on
the face and head of the deceased. The evidence of the complainant
clearly and consistently attributes the role of firing with a revolver
to him. He has stated that Jasminbhai fired at the deceased from a
close distance. This ocular evidence is duly corroborated by the
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medical evidence showing firearm injuries, the FSL reports, the
scene of offence panchnama, and the proved motive arising out of
previous enmity and the land dispute.
23.2 The medical evidence in this case assumes significance and
deserves to be discussed in detail. PW-15 Dr. Bharatbhai
Hargovindbhai Chavda at Exh.264, who conducted the post-mortem
examination on the dead body of the deceased, has categorically
deposed that the deceased had sustained one firearm entry wound
with corresponding exit wound on the right side of the chest, which
had pierced through vital organs. In addition, the deceased had
sustained multiple incised wounds on the face, head, right shoulder
and left shoulder caused by a sharp cutting weapon like a farsi.
According to the Post-Mortem Note at Exh.243, the cause of death
was opined as “Haemorrhagic shock due to multiple injuries
to vital organs caused by firearm and sharp cutting weapon”.
23.3 The doctor has further clarified in his deposition that the
firearm injury was grievous and fatal in nature and could have been
caused from a close range. He has also stated that all the injuries
were ante-mortem in nature and were individually as well as
collectively sufficient in the ordinary course of nature to cause
death. The nature, number and location of the injuries described by
the doctor are in complete consonance with the ocular testimony of
the complainant PW-28, who has stated that Accused No.2 fired a
revolver at the deceased and Accused No.1 inflicted multiple
severe blows with a farsi on the face and head of the deceased.
23.4 The medical evidence is further strongly corroborated by the
scientific evidence in the form of FSL Reports. The Ballistic
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Expert’s Report at Exh.282 clearly opines that the bullet recovered
from the body of the deceased was fired from the revolver seized in
this case. The Biology and Serology Examination Reports at
Exh.283 confirm the presence of human blood of Group ‘O’ on the
seized farsi, which matches the blood group of the deceased
Kamleshbhai. The FSL Scientific Officer PW-18 Nikunjbhai
Narharibhai Brahmbhatt at Exh.301 has fully supported these
reports in his deposition and has stood firm even in the cross-
examination. He has categorically stated that no blood stains of the
blood group of either of the accused persons were found on any of
the articles sent for examination.
23.5 The two Investigating Officers, PW-33 Dharmendrasinh
Pravinsinh Vaghela and PW-34 Dineshsinh Mahavirsinh Chauhan,
have duly proved the complete chain of custody of the muddamal
articles right from the time of their seizure from the scene of
offence till they were properly sealed, packed and forwarded to the
FSL. There is no break in the chain of custody. The scene of offence
panchnama, the recovery panchnama of the farsi, and the
forwarding letters have all been proved by the prosecution.
23.6 Thus, the ocular evidence of the complainant, the medical
evidence in the form of post-mortem report and the deposition of
Dr. Bharatbhai Chavda, and the scientific evidence in the form of
FSL reports read together unerringly and conclusively point
towards the active and specific role played by Accused No.2
Jasminbhai Bharatbhai Kothari in the commission of the offence.
23.7 We, therefore, hold that the prosecution has proved beyond
reasonable doubt that Accused No.2, in furtherance of common
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intention, committed the murder of Kamleshbhai Laghrabhai
Bodiya by firing a revolver at him. The ocular, medical and
scientific evidence are consistent, cogent, reliable and inspire full
confidence. Accordingly, the conviction of Accused No.2 under
Section 302 read with Section 34 of the IPC is fully justified and
does not call for any interference by this Court.
23.8 So far as Accused No.2 – Jasminbhai Bharatbhai Kothari is
concerned, the prosecution has consistently and repeatedly alleged
that he is the person who actually fired the revolver at the
deceased Kamleshbhai Laghrabhai Bodiya from a close range. After
a detailed, meticulous, thorough and comprehensive appreciation
of the entire oral as well as documentary evidence on record, we
find that the prosecution has been able to prove the guilt of
Accused No.2 beyond reasonable doubt for the offence of murder
with common intention.
23.9 However, we find that the prosecution has failed to prove the
charge of robbery under Section 397 IPC against Accused No.2
beyond reasonable doubt. The learned Sessions Judge himself has
disbelieved the allegation of looting of the revolver and mobile
phone. No recovery of the alleged looted articles has been made
from either of the accused. The conviction under Section 397 IPC
is, therefore, not sustainable and deserves to be set aside.
24. Considering the peculiar facts and circumstances of the case,
as discussed in the preceding paragraphs, it appears that the
Investigating Officer had conducted the investigation and recorded
statements in relation to the plea of alibi raised by Accused No. 1.
However, he deemed it fit not to place or produce the same before
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the Court. Despite the repeated plea of alibi raised by Accused No.
1, neither the Public Prosecutor/Special Public Prosecutor nor
anyone else has taken the pain to place the same before the Court,
nor did the Court consider this aspect. Hence, this aspect has
constrained us to deal with the aforesaid aspect.
Purpose for Trial = Means Fair Trial:-
25. It is apposite to quote the observations of Chinnappa
Reddy, J. in Ram Chander V. State of Haryana, (1981) 3 SCC
191:-
“2. The adversary system of trial being what it is, there is an
unfortunate tendency for a judge presiding over a trial to
assume the role of a referee or an umpire and to allow the trial
to develop into a contest between the prosecution and the
defence with the inevitable distortions flowing from combative
and competitive element entering the trial procedure. If a
criminal court is to be an effective instrument in dispensing
justice, the presiding judge must cease to be a spectator and a
mere recording machine. He must become a participant in the
trial by evincing intelligent active interest by putting questions
to witnesses in order to ascertain the truth.
Conjoined duties of the Investigating officer, Public
prosecutor/Special Public prosecutor and Court:-
26. The Hon’ble Supreme Court in Sovaran Singh Prajapati Vs.
The State of Uttarpradesh 2025 INSC 225, while analyzing the
concept of fair Trial, has deduced the following principles:
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“7. It is important to restate the purpose of trial. A trial, of
course, is a fact-finding exercise wherein both parties, i.e., the
prosecution and defence, after investigation by the competent
authorities, present their versions of events and the role and
duty of the Court to determine the truth While undertaking
such determination, the Court is not only to look at the
evidence at hand but also ensure that all consideration
balances the demand for justice and the rights of the accused.
The American Jurisprudence 2nd Ed. 2007, in the following
terms, captures the purpose of a trial:
“The purpose of trial is to determine the validity of the
allegations. The objective is to secure a fair and
impartial administration of justice between the parties
to the litigation and not the achievement of a hearing
wholly free from errors. Once a civil action has been
instituted and issue is joined upon the pleadings, there
must be a trial on the issue before a judgment may be
rendered. Trial is not a contest between lawyers but a
presentation of facts to which the law may be applied
to resolve the issues between the parties and to
determine their rights. It is also not a sport; it is an
inquiry into the truth, in which the general public has
an interest.”
Fair Trial – A guarantee under Article 21 of the Constitution of
India
10.1 A Three-Judge Bench of this Court in Vinubhai Haribhai
Malaviya v. State of Gujarat, held as under:
18. It is clear that a fair trial must kick off only after
an investigation is itself fair and just. The ultimate aim
of all investigation and inquiry, whether by the police
or by the Magistrate, is to ensure that those who have
actually committed a crime are correctly booked, and
those who have not are not arraigned to stand trial.
That this is the minimal procedural requirement that
is the fundamental requirement of Article 21 of the
Constitution of India cannot be doubted. It is the
hovering omnipresence of Article 21 over CrPC that
must needs inform the interpretation of all the
provisions of CrPC, so as to ensure that Article 21 is
followed both in letter and in spirit.”
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10.2 In the well-known ‘Best Bakery Case’ titled Zahira
Habibulla H. H. Sheikh v. State of Gujarat, the Court, detailing
various aspects of fair trial, observed as under:
“35. This Court has often emphasised that in a criminal
case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crimes being public
wrongs in breach and violation of public rights and
duties, which affect the whole community as a
community and are harmful to the society in general.
The concept of fair trial entails familiar triangulation of
interests of the accused, the victim and the society and
it is the community that acts through the State and
prosecuting agencies. Interests of society are not to be
treated completely with disdain and as persona non
grata. Courts have always been considered to have an
overriding duty to maintain public confidence in the
administration of justice often referred to as the duty to
vindicate and uphold the “majesty of the law”. Due
administration of justice has always been viewed as a
continuous process, not confined to determination of
the particular case, protecting its ability to function as
a court of law in the future as in the case before it. If a
criminal court is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to
be a spectator and a mere recording machine by
becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant
materials necessary for reaching the correct
conclusion, to find out the truth, and administer justice
with fairness and impartiality both to the parties and to
the community it serves. Courts administering criminal
justice cannot turn a blind eye to vexatious or
oppressive conduct that has occurred in relation to
proceedings, even if a fair trial is still possible, except
at the risk of undermining the fair name and standing
of the judges as impartial and independent
adjudicators.
36. The principles of rule of law and due process are
closely linked with human rights protection. Such
rights can be protected effectively when a citizen has
recourse to the courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at
ascertaining the truth has to be fair to all concerned.
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There can be no analytical, all-comprehensive or
exhaustive definition of the concept of a fair trial, and it
may have to be determined in seemingly infinite variety
of actual situations with the ultimate object in mind viz.
whether something that was done or said either before
or at the trial deprived the quality of fairness to a
degree where a miscarriage of justice has resulted. It
will not be correct to say that it is only the accused who
must be fairly dealt with. That would be turning a
Nelson’s eye to the needs of the society at large and
the victims or their family members and relatives. Each
one has an inbuilt right to be dealt with fairly in a
criminal trial. Denial of a fair trial is as much injustice
to the accused as is to the victim and the society. Fair
trial obviously would mean a trial before an impartial
judge, a fair prosecutor and atmosphere of judicial
calm. Fair trial means a trial in which bias or prejudice
for or against the accused, the witnesses. or the cause
which is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence that
also would not result in a fair trial. The failure to hear
material witnesses is certainly denial of fair trial.
xxx.
38. A criminal trial is a judicial examination of the
issues in the case and its purpose is to arrive at a
judgment on an issue as to a fact or relevant facts
which may lead to the discovery of the fact issue and
obtain proof of such facts at which the prosecution and
the accused have arrived by their pleadings; the
controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to
convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over
technicalities, and must be conducted under such rules
as will protect the innocent, and punish the guilty. The
proof of charge which has to be beyond reasonable
doubt must depend upon judicial evaluation of the
totality of the evidence, oral and circumstantial, and
not by an isolated scrutiny.”
“10.6 From a studied analysis of the above decisions, the
following principles as to the meaning and import of fair trial,
can be illustratively deduced:
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(1) Fair and Just investigation is the starting point of
the fair trial process.
(2) This process is a triangulation of the rights of the
accused, the victim and the community that acts
through the state and prosecuting agencies.
(3) Process of investigation and trial must be completed
with promptitude.
(4) The trial Judge has to play an active role in the
search for truth, which a trial, undoubtedly has to be.
(5) Bias of all nature, against the accused, the victim,
the witnesses; or the cause of/at trial, has to be
eliminated.
(6) The process of fair trial is to be done to maintain
public confidence & uphold the majesty of law.
(7) The atmosphere in which a trial is to be conducted
in a fair manner has to be in an atmosphere of ‘judicial
calm’.
(8) Unfair prolongation of trial is an affront to the ideal
of fair trial.
(9) The ideal of fair trial has protection in the
Constitution and in the international legal framework,
as a basic human right.
(10) The centripodal purpose of fair trial is to ensure
that injustice is avoided as far as possible, but equally
‘fair trial’ is not leveraged to a point which would
hinder the established procedure of Cr.P.C. In other
words, the command of the Code cannot be ignored at
the behest of the prosecution or defence, in the name
of fair trial.”
(a) Duty of the Trial Court
15. On numerous occasions, this Court has highlighted the duty
of a Trial Court to be an active participant to seek out the truth
in a given set of circumstances ensuring that a balance is
struck between the role and responsibility of prosecution as
also the rights of the accused. It would be helpful to refer to
certain pronouncements:
15.1 This Court in Pooja Pal v. Union of India, observed :
“54…It was remarked as well that due administration of
justice is always viewed as a continuous process, not
confined to the determination of a particular case so
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and a mere recording machine but become a
participant in the trial evincing intelligence and active
interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth
and administer justice with fairness and impartiality
both to the parties and to the community…”
xxx
15.3 In Bablu Kumar v. State of Bihar, this Court observed :
“22. Keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the
community and the duty of the court, it can
irrefragably be stated that the court cannot be a silent
spectator or a mute observer when it presides over a
trial. It is the duty of the court to see that neither the
prosecution nor the accused play truancy with the
criminal trial or corrode the sanctity of the proceeding.
They cannot expropriate or hijack the community
interest by conducting themselves in such a manner as
a consequence of which the trial becomes a farcical
one. The law does not countenance a “mock trial”. It is
a serious concern of society. Every member of the
collective has an inherent interest in such a trial. No
one can be allowed to create a dent in the same. The
court is duty-bound to see that neither the prosecution
nor the defence takes unnecessary adjournments and
take the trial under their control. The court is under
the legal obligation to see that the witnesses who have
been cited by the prosecution are produced by it or if
summons are issued, they are actually served on the
witnesses. If the court is of the opinion that the
material witnesses have not been examined, it should
not allow the prosecution to close the evidence. There
can be no doubt that the prosecution may not examine
all the material witnesses but that does not necessarily
mean that the prosecution can choose not to examine
any witness and convey to the court that it does not
intend to cite the witnesses.”
(b) Duty of Prosecutor
20. In a criminal trial, unless the law otherwise requires, the
onus of proof never shifts. It is always on the prosecution. The
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job of the prosecution is to drive home the guilt of the accused
beyond reasonable doubt, but at the same time, the prosecutor
cannot forget that his first and foremost duty is, that of an
officer of the Court. The prosecuting agency carries the role,
primarily, till the time the matter enters the Court. They have a
responsibility to examine all possible angles, collect all relevant
evidence and then produce the same before the Court for
determination/of guilt or lack thereof. The following extracts of
judgments underscore the indispensable role of the prosecutor.
20.1 In Bablu Kumar (supra), it was held that:
“The Public Prosecutor who conducts the trial has a
statutory duty to perform. He cannot afford to take
things in a light manner. The court also is not expected
to accept the version of the prosecution as if it is
sacred. It has to apply its mind on every occasion. Non-
application of mind by the trial court has the
potentiality to lead to the paralysis of the conception of
fair trial.”
27. Ours is a adversarial system of trial and it is a settled
principle that the burden lies solely upon the prosecution to prove
its case against the accused beyond reasonable doubt. The accused
cannot be compelled to speak, and any benefit of doubt must
necessarily enure to his advantage. A crime against an individual
is, in essence, a crime against society. Therefore, the Investigating
Officer, the Public Prosecutor/ Special Public Prosecutor, and the
Presiding Officer of the Court are all under a duty to discharge
their respective functions with utmost diligence so as to arrive at a
just and fair conclusion. The trial must proceed impartially,
affording reasonable opportunity to all concerned to present their
case. None of these stakeholders can afford to remain remiss or
adopt a lackadaisical approach. Each must perform their duties
independently, without reservations or external constraints.
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27.1 The relationship between the prosecuting agency and the
judiciary forms the very cornerstone of the criminal justice system.
The Public Prosecutor/Special Public Prosecutor, while conducting
the prosecution, is duty-bound to place before the Court all
relevant material, including that which may favour the accused,
thereby assisting the Court in its quest for truth. The objective is
not merely to secure a conviction, but to ensure that justice is done
on the basis of the material placed before the Court.
27.2 It is equally incumbent upon the Court to arrive at the truth
and subserve the ends of justice. The Court cannot act as a mere
passive recorder of evidence or a silent spectator of the
proceedings. Rather, it must adopt a participatory role in the trial.
Even where the prosecution is remiss or lethargic, the Court must
effectively control the proceedings to ensure that the ultimate
objective, discovery of truth is achieved.
27.3 The trial Judge must remain vigilant against any dereliction
of duty on the part of the prosecuting agency, including
indifference or an attitude of aloofness. In such circumstances, the
Court is empowered to exercise its wide powers to elicit all
necessary material by actively engaging in the process of evidence.
The Judge may put questions to witnesses, call for relevant
material, and ensure that no crucial evidence is suppressed or
overlooked.
27.4 Thus, the Judge is expected to play an active role in the trial
by eliciting relevant facts from witnesses in appropriate contexts,
wherever necessary for reaching a correct conclusion. The Court
possesses ample authority to intervene where it perceives errors,
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omissions, mischief, or delaying tactics, and must address such
issues in accordance with law.
27.5 In sum, while the Presiding Officer must maintain the role of
a neutral arbiter akin to a referee or umpire he cannot remain a
mere spectator. The trial is a contest between the prosecution and
the defence, but the Court must ensure that this contest is
conducted fairly, without deviation, and ultimately directed
towards the discovery of truth and the administration of justice.
28. At this juncture, it would be a failure of justice if it were to
ignore the lapses and infirmities in the investigation as well as the
dereliction of duty on the part of the prosecuting agency, etc. It is
not only the duty of the Investigating Officer but also of the Public
Prosecutor/Special Public Prosecutor and, more importantly, of the
Court itself to ensure that a just and fair conclusion is reached. The
Court is duty-bound to see that no innocent person is punished and
that every accused is not deprived of his legitimate right to put
forward his defence effectively. It is a well-settled principle that a
criminal trial is not merely a battle between the prosecution and
the defence, but a quest for truth. The Court cannot remain a mere
silent spectator.
28.1 We must also record our concern regarding the duties of the
Court, the Public Prosecutor/Special Public Prosecutor, and the
Investigating Agency in criminal trials.
28.2 As observed by the Hon’ble Supreme Court in Munna
Pandey v. State of Bihar 2023 INSC 793, neither the defence
counsel, nor the Public Prosecutor/Special Public Prosecutor, nor
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the Presiding Officer of the Trial Court, and unfortunately, even the
High Court, thought it fit to examine the aforesaid aspect of the
matter and make an effort to arrive at the truth. It was the duty of
the defence counsel to confront the witnesses with their police
statements so as to prove contradictions in the form of material
omissions and bring them on record. The lapse on the part of the
Public Prosecutor/ Special Public Prosecutor is also most
unfortunate. The Public Prosecutor/ Special Public Prosecutor was
aware that the 13 witnesses had deposed in terms of their
statements recorded under Section 161 of the CrPC; however, the
learned Public Prosecutor/ Special Public Prosecutor failed to place
the same before the Court. Nor did the Court appear to take
adequate pains to assign reasons while considering the claim of
accused No. 1. The Presiding Officer of the learned Sessions Court
also remained a mute spectator.
28.3 In view of the above and in a nutshell, such procedural lapses
may lead to a very serious crime going unpunished. Any crime
committed against an individual is a crime against the entire
society. In such circumstances, neither the public prosecutor/
Special Public Prosecutor nor the presiding officer of the trial court
can afford to remain remiss or lackadaisical in any manner. The
relations between the Public Prosecution Service and the judiciary
are the very cornerstone of the criminal justice system. The public
prosecutors who are responsible for conducting prosecutions and
may appeal against the court decisions, are one of judge’s natural
counterparts in the trial proceedings. A criminal case is built upon
the edifice of evidence that is admissible in law. Free and fair trial
is the very foundation of the criminal jurisprudence.
28.4 The learned Sessions judge also has a vital role. The judge is
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expected to actively participate in the trial, elicit necessary
materials from the witnesses in the appropriate context which he
feels necessary for reaching the correct conclusion. The judge has
uninhibited power to put questions to the witness either during the
chief examination or cross-examination or even during re-
examination for this purpose. If a judge feels that a witness has
committed an error or slip, it is the duty of the judge to ascertain it.
Criminal justice is not to be founded on erroneous answers spelled
out by witnesses during evidence collecting process rather
expecting fair Trial and exchange of duties by all concerned.
29. It is well settled that while applying the principle of falsus in
uno, falsus in omnibus, the Court is required to separate the
truthful part of the evidence from the falsehood. In the present
case, such segregation is not only possible but has been
appropriately undertaken. Upon such scrutiny, the prosecution
case does not stand proved beyond reasonable doubt against
accused No.1, and the benefit of doubt arising from the plea of alibi
deserves to be extended to him. However, so far as accused No.2 is
concerned, the prosecution case stands proved. Therefore, the
impugned judgment warrants interference only to the extent of
accused No.1, while no interference is called for qua accused No.2.
29.1 The maxim falsus in uno, falsus in omnibus is merely a rule of
caution. Where witnesses are found unreliable on certain aspects,
such as exaggeration regarding the involvement of other accused,
the Court is duty bound to carefully scrutinize the remaining
evidence and may rely upon those portions which are found to be
credible and duly corroborated. In the present case, the
exaggerations regarding conspiracy and involvement of accused
No.1 have rightly been discarded, particularly in light of the
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plausible plea of alibi raised by him, which creates a reasonable
doubt entitling him to acquittal. However, the core substratum of
the prosecution case, the fatal firearm injuries attributed to
accused No.2 stands firmly established through cogent and
corroborative evidence, including medical evidence, forensic
reports, and recovery.
30. At this juncture, it is apposite to observe that, despite the
plea of alibi having been raised by Accused No.1 from the very
inception of the case, neither the Investigating Officer, nor the
learned Public Prosecutor/special Public Prosecutor, nor the
Presiding Officer of the trial Court thought it fit to properly
examine or place on record the material collected during the
investigation concerning the said plea, thereby failing to make
efforts to reach at the truth.
31. In a nutshell as far as Accused No.2 – Jasminbhai Bharatbhai
Kothari is concerned, the evidence of the complainant clearly and
consistently attributes the role of firing with a revolver to him. His
testimony is corroborated by the medical evidence showing firearm
injuries, the FSL reports confirming the use of a firearm, the scene
of offence panchnama, and the proved motive arising out of
previous enmity and the land dispute. After a detailed and
meticulous appreciation of the entire evidence on record, we find
that the prosecution has been able to prove the guilt of Accused
No.2 beyond reasonable doubt for the offence of murder with
common intention. We find no reason to interfere with the
conviction recorded by the learned Sessions Judge under Section
302 read with Section 34 IPC. The appeal filed by Accused No.2 is,
therefore, dismissed.
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32. In view of the above discussion, appreciation of evidence, and
the principles laid down by the Hon’ble Supreme Court on the plea
of alibi and the duties of the stakeholders in a criminal trial, we
hold that the appeal filed by Accused No.1 – Asim @ Munmun @
Asif Abdulkarimbhai Solanki deserves to be allowed and he is
entitled to acquittal on the ground of proved plea of alibi and
accordingly the appeal stands allowed.
32.1 The appeal filed by Accused No.2 – Jasminbhai Bharatbhai
Kothari is dismissed. His conviction and sentence under Section
302 read with Section 34 IPC as well as under Section 25(1)(B)(a)
of the Arms Act, as recorded by the learned Additional Sessions
Judge, Botad, stands confirmed.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
Kaushal Rathod
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