Gujarat High Court
Thakor Shaileshji Balaji vs State Of Gujarat on 10 March, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/193/2021 JUDGMENT DATED: 10/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 193 of 2021
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
6 of 2024
In R/CRIMINAL APPEAL NO. 193 of 2021
With
R/CRIMINAL APPEAL NO. 413 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================
Approved for Reporting Yes No
==========================================================
THAKOR SHAILESHJI BALAJI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
Criminal Appeal No.193 of 2021:
MR RJ GOSWAMI(1102) With MR DA CHAUDHARI for the Appellant(s) No. 1
MR VANDAN K BAXI(5863) for the Opponent(s)/Respondent(s) No. 1
MR VAIBHAV SHUKLA With MS JANKI JADEJA For NANAVATI &
NANAVATI(1933) for the Opponent(s)/Respondent(s) No. 1
Criminal Appeal No.413 of 2020:
MR VAIBHAV SHUKLA With MS JANKI JADEJA For NANAVATI &
NANAVATI(1933) for the Appellant(s) No.11
MR ASHISH M DAGLI(2203) for :Opponent(s)/Respondent(s) 10-18,2,4-5,7-9
MR V B MALIK(5071) for :Opponent(s)/Respondent(s) 19,6
RULE SERVED(64) for :Opponent(s)/Respondent(s) 3
In both appeals:
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
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R/CR.A/193/2021 JUDGMENT DATED: 10/03/2026
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Date : 10/03/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Being aggrieved and dissatisfied with the judgment and order dated
18.09.2019 passed by the learned Additional Sessions Judge, Patan in
Sessions Case No.75 of 2013, whereby the appellant-accused Thakor
Shaileshji Balaji came to be convicted for the offences punishable under
Section 302 of the Indian Penal Code and Section 25(1)(a) of the Arms
Act, 1959 read with other provisions, the appellant accused has preferred
Criminal Appeal No.193 of 2021. The other accused persons came to be
acquitted in Sessions Case No.75 of 2013 and, the appellant complainant
has preferred Criminal Appeal No.413 of 2020 under Section 372 of the
Code.
2. Since both the appeals arise out of common judgment and involve
connected accused persons, they have been heard together and are being
disposed of by this common judgment.
3. The brief facts leading to the filing of the present appeals are as
under:
3.1. The complainant along with his son Nagjiji and brother-in-law
Babuji was present at his agricultural field situated at village Bhalgaam
on 07.06.2012 at about 11:00 a.m. The complainant was engaged in
levelling the fence of the field bearing Survey No.209 while his son was
ploughing the land with a tractor. At that juncture, the accused persons
arrived in a group comprising persons on motorcycles and in cars bearing
registration Nos.GJ-24-A-9080 and GJ-18-AH-6593 along with fourPage 2 of 34
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motorcycles. The accused, inter alia including Somaji, Mangaji,
Shaileshji, Mahadevji, Bhavanji and others, questioned the complainant
and his son regarding ploughing the field, claiming ownership thereof,
abused them in filthy language and demanded a sum of Rs.5,00,000/- for
permitting cultivation. An altercation ensued during which the accused
persons, armed with deadly weapons such as dhariya, iron pipe, scissors,
spear, stick etc., assaulted the complainant’s brother-in-law Babuji with
dhariya on head, thigh and right arm by accused Somaji. When the
complainant’s son Nagjiji attempted to flee towards the road, the
appellant-accused Thakor Shaileshji Balaji drew a tamancha/revolver and
fired two rounds at him, causing him to fall on the roadside kachcha
portion. The complainant and others who rushed to rescue Nagjiji were
also assaulted. Nagjiji was shifted to Dharpur hospital where he
succumbed to the injuries. It is further alleged that certain accused
persons including Amratji Madarji, Amarsang Karsanji and Pravinsang
Amarsang arrived subsequently pursuant to prior conspiracy.
3.2. A complaint came to be lodged leading to registration of the First
Information Report for the offences punishable under Sections 147, 148,
149, 302, 307, 324, 323, 504, 120-B of the Indian Penal Code, Section
135 of the Bombay Police Act and Section 25(1)(a) of the Arms Act,
1959. Investigation was carried out, during the course of which charge-
sheet was filed on 05.09.2012 before the learned Judicial Magistrate First
Class, Patan, which came to be registered as Criminal Case No.2163 of
2012. The case being exclusively triable by the Court of Session was
committed to the Sessions Court, Patan and registered as Sessions Case
No.75 of 2013.
3.3. In Sessions Case No.75 of 2013, upon conclusion of trial and
appreciation of evidence, the learned Sessions Court convicted the
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appellant-accused under Section 302 of the Indian Penal Code and
sentenced him to undergo life imprisonment with fine of Rs.10,000/- (in
default, 6 months simple imprisonment) and under Section 25(1)(a) of the
Arms Act, 1959 to undergo rigorous imprisonment for 3 years with fine
of Rs.5,000/- (in default, 3 months simple imprisonment), both sentences
to run concurrently. The accused Thakor Dashrathji Hajurji was
convicted under Section 25(1)(a) of the Arms Act, 1959 and sentenced to
undergo rigorous imprisonment for 6 months with fine of Rs.1,00,000/-
(in default, 2 months simple imprisonment). The remaining accused
persons were acquitted of all the charges levelled against them by giving
benefit of doubt for want of sufficient evidence. The learned Sessions
Court further directed payment of compensation of Rs.1,00,000/- to the
heirs of the deceased under Section 357 of the Code from the amount of
fine recovered.
4. We have heard the learned advocates for the respective parties and
carefully examined the oral and documentary evidence adduced before
the learned Sessions Court. During the course of the trials, the
prosecution examined witnesses and produced documents as detailed
below:
~:: Oral Evidence::~
P.W. Exh.
Particular (Witness)
No. No.
1. Dr. Ankur Prahladbhai Patel 131
2. Becharji Naranji Thakor 158
3. Babuji Pradhanji Thakor 264
4. Pratapji Becharji Thakor 281
5. Hareshbhai Chandubhai Darji 290
6. Mohammadhanif Gulammohammad Pathan 291
7. Manuji Babuji Thakor 294
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P.W. Exh.
Particular (Witness)
No. No.
8. Nareshbhai Bhanjibhai Raval 299
9. Deepsangji Fatuji Thakor 300
10. Jiluji Pratapji Thakor 310
11. Champuji Juhaji Thakor 322
12. Dr. Dhavalbhai Babubhai Patel 330
13. Dr. Bhavinbhai Chimanbhai Patel 336
14. Sujanji Manaji Thakor 337
15. Vishnubhai Dhanabhai Vaghri 342
16. Govindji Okhaji Thakor 350
17. Manaji Devaji Thakor 356
18. Prakashji Punaji Thakor 359
19. Prabhatji Lakhuji Thakor 365
20. Tejaji Juhaji Thakor 368
21. Bakaji Sonaji Thakor 369
22. Vadanji Jogaji Thakor 371
23. Leelaji Jagdevji Thakor 372
24. Jashwantji Motiji Thakor 375
25. Prabhatji Sursangajji Thakor 379
26. Rameshji Rupaji Thakor 380
27. Prahladji Kachraji Thakor 383
28. Abbaskhan Haidarkhan Pathan 386
29. Shaileshji Rameshji Thakor 392
30. PSO Mukeshkumar Khanabhai Parmar 406
31. PSI Baldevbhai Gafurbhai Desai 413
32. Jeevanji Babuji Thakor 416
33. IO Kaasamkhan Ramjaankhan Pathan 420
34. IO Ashokkumar Kanubhai Kalasva 430
35. IO Dr. Jigarbhai Bharatkumar Pandit 448
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~:: Documentary Evidence ::~
Exh.
Sr. No. Particular (Document)
No.
Post-Mortem Examination Note of the deceased
1. 132
Nagjiji Becharji
Medical Certificate of the deceased Nagjiji
2. 133
Becharji
3. Complaint lodged by the complainant 159
Certified copy of the sale deed pertaining to land
4. 160
bearing Survey No. 209
5. Panchnama of the scene of offence 295
6. Muddamal slip 296
Panchnama of the physical condition of the
7. 301
accused persons
Panchnama regarding seizure of clothes of the
8. 311
deceased Nagji Becharji Thakor
Panchnama of the physical condition of the
9. 312
accused persons
10. Discovery panchnama 313
11. Discovery panchnama 314
315 to
12. Muddamal panch slip
321
Medical certificate of injuries sustained by Thakor
13. 331
Jivanji Babuji
Case papers relating to treatment of Thakor Jivanji
14. 332
Babuji
Medical certificate of injuries sustained by Thakor
15. 333
Shaileshji Rameshji
Case papers relating to treatment of Thakor
16. 334
Shaileshji Rameshji
Medical certificate of injuries sustained by Thakor
17. 335
Babuji Pradhanji
18. Muddamal panch slip 340
Panchnama of the physical condition of the injured
19. 341
BabujiPage 6 of 34
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Exh.
Sr. No. Particular (Document)
No.
Panchnama of the physical condition of the
20. 343
accused persons
344 to
21. Muddamal panchnama slips
349
22. Discovery panchnama of the muddamal pistol 351
23. Muddamal panch slip 352
Inquest panchnama of the deceased Nagjiji
24. 353
Becharji
Panchnama of the physical condition of the
25. 361
accused persons
Panchnama of the physical condition of the
26. 362
accused persons
27. Muddamal panch slips 363, 364
Panchnama of the physical condition of the
28. 370
accused persons
Panchnama of the physical condition of the
29. 376
accused persons
30. Muddamal discovery panchnama 377
31. Muddamal panchnama slip 378
Panchnama of the physical condition of the
32. 381
accused persons
33. Muddamal panch slip 382
Panchnama of the physical condition of the
34. 387
accused
35. Panchnama of personal search of the accused 388
36. Muddamal panch slip 389
37. Report for registration of the offence 407
38. Depute order 408
39. Copy of station diary 409
40. Copy of station diary 414
41. Preliminary report form of the FSL 449
42. Dispatch note to the FSL 450
43. Acknowledgment receipt of muddamal by the FSL 451
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Exh.
Sr. No. Particular (Document)
No.
44. Yadi for forwarding analysis report to the FSL 452, 453
Letter seeking permission from the learned District
45. 454
Magistrate for filing chargesheet
455 to
46. Call details
465
466 to
47. Yadi for obtaining call details
469
Discovery panchnama of muddamal pertaining to
48. 470
the accused
49. Report for addition of Section 307 in the FIR 471
Letter granting permission from the learned
50. 472
District Magistrate for filing chargesheet
Letter granting permission from the Deputy
51. 473, 474
Superintendent of Police for filing chargesheet
Statement of Thakor Babuji Pradhanji recorded by
52. 478
the Executive Magistrate
Extract of 7/12 record pertaining to land Survey
53. 479
No. 209
Extracts of Form 7 pertaining to land bearing
54. 480, 481
Survey No. 209
Copy of the notification/proclamation regarding
55. prohibition of arms issued by the District 482
Magistrate
Memorandum for conducting inquest, inquest
form for forwarding the dead body, memorandum
483 to
56. for obtaining death declaration from Executive
488
Magistrate, memorandum addressed to F.S.L.,
receipt regarding possession of the dead body
Report regarding seizure of clothes of the
57. 489
deceased
Memorandum addressed to the Executive
58. Magistrate for preparation of map of the scene of 490
offence
59. Report for medical examination of the accused 491 to
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Exh.
Sr. No. Particular (Document)
No.
report regarding arms licence, memorandum for
obtaining name and address of the owner of the
vehicle involved in the offence, extract of
incoming telephone calls, memorandum for
obtaining mobile call details, necessary extracts
pertaining to Survey No. 209
Report for medical examination of the accused
60. 498
persons
61. Copy of the invoice/bill of the motorcycle 499
62. Analysis report of the FSL 500, 501
63. Muddamal panch slips 502, 503
5. Learned advocate for the appellant in Criminal Appeal No. 193 of
2021 assailed the impugned judgment of the City Civil and Sessions
Court, Ahmedabad on several substantial grounds. It is the submission
that the learned Sessions Court has gravely erred in convicting the
appellant under Section 302 of the Indian Penal Code, as the prosecution
has failed to prove beyond reasonable doubt that the appellant was the
person who fired the fatal shot causing the death of the deceased Nagjiji.
The identification of the appellant as the assailant with the pistol rests
entirely upon the depositions of highly interested witnesses belonging to
the complainant’s family, namely the complainant Becharji Naranji
Thakor (PW-2, Exh.-158), Pratapji Becharji Thakor (PW-4, Exh.-281),
Shaileshji Rameshji Thakor (PW-29, Exh.-392), Jeevanji Babuji Thakor
(PW-32, Exh.-416), and the injured witness Babuji Pradhanji Thakor
(PW-3, Exh.-264). These depositions suffer from material contradictions
and improvements, while one version alleges direct firing upon the
deceased, another version suggests the second shot was intended for
Pratapji Becharji Thakor but incidentally struck the deceased, thereby
casting serious doubt upon the existence of the requisite mens rea under
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Section 300 of the Indian Penal Code. Even the independent witness
Manaji Devaji Thakor (PW-17, Exh.-356) does not attribute the fatal shot
to the appellant with unerring certainty. The recovery of the pistol (Exh.-
351) at the instance of co-accused Dashrathji Hajurji Thakor stands
vitiated by reason of the fact that several panch witnesses turned hostile
(Exh.-344 to 349, 352), and the Investigating Officer’s depositions (Exh.-
430, Exh.-448) disclose considerable delay in effecting arrest, recovery of
the vehicle, and forwarding articles to the FSL (Exh.-449 to 453), which
gives rise to legitimate apprehension of tampering or fabrication. The
postmortem note (Exh.-132) establishes death by firearm injury but does
not furnish any conclusive link to the recovered pistol, and the ballistic
evidence remains inconclusive. The alleged motive concerning dispute
over Survey No.209 (Exh.-479) has no direct nexus with the appellant,
nor do the call details (Exh.-455 to 465) establish his participation in any
conspiracy under Section 120B of the Indian Penal Code. The charges
under Sections 147 to 149 of the Indian Penal Code are unsustainable in
light of the acquittal of several co-accused. Without prejudice to the
above, the statement of the appellant recorded under Section 313 of the
Code of Criminal Procedure was not properly appreciated. It is therefore
prayed that the conviction be set aside and the appellant be acquitted, as
the findings are perverse and the sentence of imprisonment for life is
liable to be quashed to prevent miscarriage of justice.
6. Learned advocate for the appellant in Criminal Appeal No. 413 of
2020 advanced submissions assailing the acquittal of accused Nos. 1 and
3 to 19 recorded by the City Civil and Sessions Court, Ahmedabad,
submitted that the learned Sessions Court has gravely erred in failing to
appreciate the evidence establishing their guilt in the murderous assault.
It is the submitted that the common object of the unlawful assembly to
forcibly obtain possession of land bearing Survey No.209 is clearly
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established by the motive disclosed in the deposition and additional
statement of the complainant Becharji Naranji Thakor (PW-2, Exh.-158),
wherein accused Nos. 15 Amratji Madarji Thakor, 16 Amarsang Karsanji
Thakor and 17 Pravinsang Amarsang Thakor entered into conspiracy
under Section 120B of the Indian Penal Code and paid ransom of
Rs.3,00,000/- to summon accused Nos. 1 to 14 from the village, all armed
with deadly weapons including dhariya, kator, spear, sticks, iron pipe and
revolver. Specific overt acts are proved: accused No. 1 Somaji Amraji
Thakor inflicted dhariya blows upon the head, shoulder and thigh of
injured Babuji Pradhanji Thakor (PW-3, Exh.-264) causing deep
lacerated wounds with bleeding (Exh.-335), warranting conviction under
Section 307 of the Indian Penal Code, accused No. 5 Gamaji Dhulaji
Thakor assaulted Jeevanji Babuji Thakor with kator (PW-32, Exh.-416),
accused No. 4 Takhaji Amraji Thakor was in possession of iron pipe
recovered at his instance, accused No. 6 Mahadevbhai Harjibhai Bharvad
and accused No. 11 Ambaram Vastaji Thakor inflicted stick blows while
accused No. 11 held the complainant (PW-2, Exh.-158), accused No. 3
Dashrathji Hajurji Thakor procured the pistol from accused No. 18 Belim
Zahirkhan Abbaskhan for Rs.80,000/-, facilitating the fatal firing. The
independent witness Manaji Devaji Thakor (PW-17, Exh.-356)
corroborates the abusive language attracting Section 504 of the Indian
Penal Code and the armed presence violating Section 135 of the Gujarat
Police Act. The medical evidence confirms grievous hurt under Sections
323 to 326 of the Indian Penal Code, while call details, recoveries of
vehicles and weapons and absconding establish the conspiracy. The
learned Sessions Court wrongly treated material contradictions as minor
and failed to appreciate the vested interest of hostile panch witnesses.
Without prejudice, the acquittal is perverse and contrary to the evidence
of a heinous attack resulting in murder. It is therefore prayed that the
acquittal be set aside, all the acquitted accused persons be convicted
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under the charged sections, and appropriate stringent sentences be
imposed to secure justice for the victim family and to deter such violent
land disputes.
7. Learned advocate for the respondents accused Nos. 2, 4, 5, 7, 8, 9,
10, 11, 12, 13, 14, 15, 16, 17 and 18 stoutly supported the acquittal
recorded in Criminal Appeal No. 413 of 2020 and opposed any
enhancement or reversal. It is the submission that the learned Sessions
Court has rightly acquitted these accused persons upon proper
appreciation of evidence, as the identification by interested witnesses
lacks independent corroboration and suffers from material omissions and
contradictions in their prior statements and depositions. The recoveries
are unreliable in view of the turning hostile of panch witnesses and the
delay involved. No direct or specific overt act connecting these accused
persons to the fatal firing or to the infliction of grievous hurt has been
proved beyond reasonable doubt. The charge of conspiracy under Section
120B of the Indian Penal Code fails for want of cogent evidence of any
meeting of minds or specific involvement in call details. Without
prejudice, the appreciation of evidence by the learned Sessions Court is
sound and no sufficient ground exists for interference in appeal or for
enhancement of sentence. It is therefore prayed that Criminal Appeal No.
413 of 2020 be dismissed.
8. Learned advocate for the respondents accused Nos. 6 and 19
defended the acquittal, submitting that the learned Sessions Court has
correctly recorded acquittal for want of reliable and sufficient evidence
against these accused persons. It is the humble submission that the
alleged role of accused No. 6 in inflicting stick blows and the alleged
supply of the pistol by accused No. 19 lack credible proof beyond the
interested testimony of the complainant’s family, and the same stands
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vitiated by the turning hostile of certain panch witnesses, absence of FSL
linkage to the crime, and want of prior enmity or proved participation in
conspiracy. Without prejudice, the findings of acquittal are well-reasoned
and do not warrant interference in appeal. It is therefore prayed that
Criminal Appeal No. 413 of 2020 be dismissed.
9. Learned APP for the respondent-State submitted that the learned
Sessions Court has rightly convicted the appellant in Criminal Appeal
No. 193 of 2021 under Section 302 of the Indian Penal Code upon
cogent, consistent and overwhelming evidence. It is the humble
submission that the cause of death by firearm injury stands conclusively
proved by the postmortem note and the medical certificate. The presence
of the appellant armed with a pistol and his act of firing two shots one of
which proved fatal to the deceased Nagjiji Becharji Thakor are amply
corroborated by the depositions of the complainant Becharji Naranji
Thakor (PW-2, Exh.-158), injured witnesses Babuji Pradhanji Thakor
(PW-3, Exh.-264) and others, as well as the independent witness Manaji
Devaji Thakor (PW-17, Exh.-356). The minor variations in the
depositions of family members are natural in the circumstances of sudden
and traumatic occurrence and do not detract from the reliability of the
core prosecution case.
9.1. It is further submitted that the discovery of the pistol (Exh.-351) at
the instance of co-accused Dashrathji Hajurji Thakor is admissible and
reliable, as supported by the depositions of the Investigating Officers, and
the FSL reports confirm the presence of gunshot residues consistent with
the crime. Insofar as Criminal Appeal No. 413 of 2020 is concerned, the
learned Sessions Court has committed error in acquitting accused Nos. 1
and 3 to 19, overlooking the formation of an unlawful assembly armed
with deadly weapons such as dhariya, spear and iron pipe, etc. Specific
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overt acts include the dhariya blows by accused No. 1 Somaji Amraji
Thakor upon Babuji Pradhanji Thakor (PW-3, Exh.-264), the kator
assault by accused No. 5 Gamaji Dhulaji Thakor upon Jeevanji Babuji
Thakor (PW-32, Exh.-416), and the procurement of the pistol by accused
No. 3 Dashrathji Hajurji Thakor.
9.2. It is further submitted that the motive concerning possession of
Survey No.209 and the element of conspiracy under Section 120B of the
Indian Penal Code are established through the additional statement of the
complainant, call details and recoveries.
9.3. It is further submitted that the ingredients of Sections 147 to 149,
323 to 326, 307, 504 of the Indian Penal Code and Section 135 of the
Gujarat Police Act stand fully satisfied. The turning hostile of certain
panch witnesses does not demolish the prosecution case built upon direct
ocular and medical evidence. It is therefore prayed that Criminal Appeal
No. 193 of 2021 be dismissed and Criminal Appeal No. 413 of 2020 be
allowed by convicting the acquitted accused persons, so as to uphold
justice and serve as deterrence against such grave offences arising from
land disputes.
10. Having heard the learned advocates for both sides and perused the
depositions of the witnesses, documentary evidence, and the judgment of
the learned Sessions Judge, Patan, it appears that the testimony of the
complainant, who is the key eyewitness, is credible regarding the act of
firing by accused No. 2 but insufficient to establish unlawful assembly or
conspiracy against the acquitted accused. The learned Sessions Judge has
rightly appreciated the evidence to convict accused Nos. 2 and 3 while
acquitting the others.
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11. After examining the record, it appears that the case arises out of a
land dispute concerning Survey No. 209. The incident occurred on
07.06.2012, as stated in the complaint (Exh.-159). As per the complaint,
on 07.06.2012 at about 11:00 a.m., the complainant Becharji Naranji
Thakor (PW-2, Exh.-158) was present at his agricultural field in village
Bhalgaam along with his son Nagjiji and his brother-in-law Babuji
Pradhanji Thakor (PW-3, Exh.-264). The complainant was levelling the
fence of Survey No. 209 and his son was ploughing the land with a
tractor. At that time, the accused persons arrived together on motorcycles
and in cars bearing registration Nos. GJ-24-A-9080 and GJ-18-AH-6593,
along with 4 motorcycles. The accused, including Somaji, Mangaji,
Shaileshji, Mahadevji and others, questioned the complainant and his son
about ploughing the land and claimed ownership over it. They abused
them and demanded Rs.5,00,000/- to allow cultivation. A quarrel then
took place. The accused were armed with weapons such as dhariya, iron
pipe, scissors, spear and stick. It is alleged that Somaji assaulted Babuji
with a dhariya on his head, thigh and right arm. When Nagjiji tried to run
towards the road, the appellant-accused Thakor Shaileshji Balaji took out
a tamancha/revolver and fired 2 shots at him, causing him to fall on the
kachcha portion of the roadside. When the complainant and others tried to
rescue Nagjiji, they were also assaulted. Nagjiji was taken to Dharpur
hospital, where he died due to the injuries. It is further alleged that
Amratji Madarji, Amarsang Karsanji and Pravinsang Amarsang later
joined the incident as part of a prior conspiracy.
12. The postmortem examination of deceased Nagjiji Thakor was
conducted by a panel of 3 doctors, including Dr. Ankur Prahladbhai Patel
(PW-1, Exh.-131). In his sworn testimony, he stated that on 07.06.2012 at
4:00 PM, the dead body was brought to Dharpur Hospital by the Police
Inspector of Taluka Police Station for postmortem examination. The
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postmortem started at 4:30 PM and was completed at 7:15 PM. During
external examination, it was found that there was a cut hole measuring 1
x 0.5 cm on the right front side of the shirt, another hole measuring 0.7 x
0.7 cm about 1 cm to its right, and an irregular cut of 1 x 1 cm on the
back of the right arm. There were gunshot entry wounds on the right front
chest penetrating into the chest cavity and on the back shoulder
penetrating into the muscles. Both injuries were antemortem. On internal
examination, it was found that the bullet had entered from the right side
of the chest bones, passed through the left lung, and got lodged between
the 7th and 8th ribs on the back side. The doctors opined that the cause of
death was shock and hemorrhage due to firearm injury. They further
stated that the injuries mentioned in column 17 of the postmortem note
were sufficient in the ordinary course of nature to cause death. The
postmortem note, signed by all 3 doctors including Dr. Dhavalbhai
Babubhai Patel (PW-12, Exh.-330), was exhibited at Exh.-132, and the
death certificate was exhibited at Exh.-133. During cross-examination,
the doctor remained consistent. He clarified that the abrasion collar
mentioned in column 17(1) was part of the gunshot injury and not a
separate injury. He admitted that the 2 holes in the shirt could be possible
either due to falling on a sharp object or due to the bullet exiting the
body, depending on its direction. He denied that a bullet injury to the arm
would necessarily cause a person to fall immediately. He stated that
questions regarding the exact firing distance should be answered by a
ballistic expert. He also confirmed that he was familiar with different
types of firearms and that different weapons can cause different types of
injuries.
13. The learned Sessions Court held that this medical evidence was
reliable and supported the case that the death was homicidal and caused
by firearm injury. Upon independent and careful re-examination, we
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agree with the findings of the learned Sessions Court. The doctor’s
evidence is clear, consistent, and fully supported by the postmortem note.
There is no material contradiction in his testimony. The answers given in
cross-examination do not affect his main opinion that the death was
caused by firearm injuries which were sufficient to cause death in the
ordinary course of nature. The absence of detailed ballistic evidence does
not weaken the medical evidence, as the nature and description of the
injuries clearly show that the death was the result of a deliberate firearm
assault. Therefore, the conclusion arrived at by the learned Sessions Court
on this medical evidence to prove the death and intention is proper and
justified.
14. The complainant Becharji, in his oral evidence at Exh.-158,
supported the contents of the complaint. In his sworn testimony, he stated
that during the incident, his sons Nagjiji and Pratapji Becharji Thakor
(PW-4, Exh.-281) came forward to intervene. He deposed that Shaileshji
first fired a shot at Nagjiji’s chest. Thereafter, he fired a second shot
towards Pratapji with intention to kill him, but Nagjiji came in between
and received the bullet on his shoulder, after which he immediately fell
down. Nagjiji was taken to Dharpur Hospital in Pratapji’s vehicle, where
the doctor declared him dead. Becharji identified the muddamal articles,
including the clothes worn by Nagjiji at the time of the incident and the
weapon used by Shaileshji.
15. The learned Sessions Court found his evidence consistent and
reliable, particularly as he maintained his version even during cross-
examination, and therefore held that the fatal firing was done by
Shaileshji Balaji. Upon independent assessment, it is found that Becharji
is a direct eyewitness and his testimony has remained consistent. The
minor clarification regarding the direction of the second shot is natural in
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the circumstances of a sudden and chaotic incident and does not amount
to a major contradiction. His identification of the weapon and clothes
further supports his version. Therefore, the evidence proves beyond
reasonable doubt that Shaileshji intentionally fired the shots which caused
the death of Nagjiji, satisfying the requirements of Section 302, as fall
under Section 299 of the Indian Penal Code.
16. Babuji Pradhanji Thakor, examined at Exh.-264, is the brother-in-
law of the complainant. He stated that he had gone to Becharji’s house as
a guest. At about 11:00 a.m., while he and Becharji were present, 2
persons came and raised a dispute regarding the land. Thereafter, about
12 persons arrived carrying spears, dharias, swords and sticks and began
abusing Becharji. When Babuji tried to pacify them, 1 person attacked
him with a dharia on his head, shoulder and thigh. On hearing his shouts,
Nagjiji and Pratapji came to rescue him. At that time, 1 person took out a
revolver and fired 2 shots at Nagjiji, who fell down. Babuji stated that
Somaji Amaraji attacked him and he identified him in Court. He also
identified some other accused and the muddamal weapons. At the time of
the incident, he did not know the name of the person who fired the
revolver but he recognized him by face. In Court, he identified Shaileshji
Balaji as the person who fired the shots and stated that he knew him
earlier due to regular interaction.
17. In cross-examination, he admitted that certain facts were not
mentioned in his police statement, including that he was trying to pacify
the mob, that he sustained injury on his shoulder, and that Nagjiji and
Pratapji came to rescue him.
18. The learned Sessions Court considered him a credible injured
eyewitness. Though he had not named the shooter in his police statement
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and no test identification parade was conducted, the Court held that his
identification in Court was reliable because he already knew Shaileshji.
After careful re-examination, we agree with that view, as his evidence is
consistent with the complaint and medical record. The omission of the
name in the earlier statement can be explained due to the trauma and
confusion at the time of the incident. The absence of a test identification
parade does not affect the case since he had prior acquaintance with the
accused. His evidence strongly supports that Shaileshji directly fired the
fatal shots, thereby committing the offence under Section 302.
19. On perusal of case papers, it emerges that, the learned Sessions
Court examined the evidence regarding the injuries of Babuji Pradhanji
and found serious weaknesses in the prosecution case, which does not
require interference. In the complaint (Exh.-159) and in the evidence of
Becharji (Exh.-158), it was stated that Somaji Amaraji assaulted Babuji
with a dharia on his head, thigh and right arm. The medical history
recorded by Dr. Bhavinbhai Chimanbhai Patel (PW-13, Exh.-336) does
not mention the name of any assailant or the weapon used. The injury
certificate (Exh.-335) shows that the injuries were contused lacerated
wounds, which can be caused by a hard and blunt object. The 161-
statement (Exh.-478), recorded on the same day, clearly states that Babuji
did not know who assaulted him and that he would identify the person if
shown to him. No test identification parade was conducted. The medical
evidence also does not state that the injuries were sufficient in the
ordinary course of nature to cause death.
20. On this basis, the learned Sessions Court has aptly held that the
prosecution failed to prove beyond reasonable doubt that Somaji Amaraji
caused the injuries to Babuji with a dharia. After independently reviewing
the oral and documentary evidence, we agree with that conclusion. The
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evidence of the injured witness shows improvements and material
contradictions when compared with his earlier police statement and the
medical history. The medical certificate and the doctor’s evidence only
prove that Babuji sustained simple injuries, they do not establish who
caused them. As no test identification parade was conducted and the
name of the assailant was not mentioned in the hospital record or in the
161-statement recorded on the day of the incident, the later identification
in Court cannot be considered fully reliable. Mere suspicion, however
strong, is not sufficient to convict. Therefore, although it is proved that
Babuji was present at the scene and sustained injuries, it is not proved
beyond reasonable doubt that those injuries were caused by Somaji
Amaraji.
21. On perusal of deposition of Pratapji Becharji Thakor (PW-4, Exh.-
281), who stated that he and Nagjiji went to rescue their father from the
mob. At that time, Shaileshji Balaji took out a revolver from the waist of
his pants and fired the first shot at Nagjiji. He then fired a second shot at
Pratapji, but Nagjiji stepped in between them and received the bullet in
his arm, after which he fell down. Pratapji brought his vehicle, placed
Nagjiji inside with the help of Jeevanji Babuji Thakor (PW-32, Exh.-416)
and another person named Shaileshji, and took him to Dharapur
Government Hospital, where he was declared dead.
22. He identified muddamal as the revolver used in the incident and
identified Shaileshji. In cross-examination, he stated that the revolver was
not fired at the place where they were sitting earlier. He clarified that the
weapon used was a revolver. The learned Sessions Court treated this
evidence as reliable. It held that the admissions made during cross-
examination were minor in nature and did not affect the main case of the
prosecution. We find that the detailed description of the incident and the
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clear identification of the accused proved that Shaileshji was responsible
for firing the fatal shots. We agree with the finding of learned Sessions
Court. The evidence of Pratapji remains consistent on the main and
material facts of the incident. The minor points raised in cross-
examination do not weaken his clear and detailed description of how the
shots were fired. Being a close family member and an eyewitness who
was present and directly involved at the scene, his testimony carries
strong evidentiary value. His evidence proves beyond reasonable doubt
that the act committed by Shaileshji amounts to murder punishable under
Section 302.
23. On perusal of deposition of Manaji Devaji Thakor (PW-17, Exh.-
356), who stated that upon Babuji Pradhanji Thakor’s (PW-3, Exh.-264)
injury, Nagjiji advanced to confront the assailants, at which point accused
Shaileshji Balaji from Elampur drew a revolver from his pants and fired
at Nagjiji, who was struck by the bullets and collapsed on the roadside,
Manaji recognized the accused and identified the muddamal revolver as
the one in Shaileshji’s hand during the firing. In cross-examination, he
confirmed his police statement describing loud altercations drawing him
to the borewell site, where Nagjiji arrived running, and Shaileshji fired
two shots at him, he noted Shaileshji Rameshji Thakor (PW-29, Exh.-
392) (Norata) and Pratapji intervening, with Pratapji arriving in a white
vehicle to evacuate Nagjiji. The learned Sessions Court found this
corroborative, emphasizing Manaji’s presence and detailed observation
despite denials of fabrication. We find that as Manaji’s testimony
harmonizes with preceding accounts, with cross-examination reinforcing
rather than eroding the narrative, the identification and weapon linkage
further cement Shaileshji’s responsibility for the fatal shooting, meeting
the threshold for conviction under Section 302.
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24. On perusal of deposition of Shaileshji Rameshji Thakor, who
stated on oath that when he heard a quarrel near the borewell of his
maternal uncle Becharji Naranji Thakor (PW-2, Exh.-158), he, along with
Jeevanji Babuji Thakor, Maheshji and Manaji, immediately ran towards
the road near the borewell gate. There, he saw about 10 to 15 persons
armed with weapons. He stated that 1 person struck Babuji Pradhanji on
the head with a dharia, which created chaos. He and others, including
Becharji, Pratapji and Nagjiji, went forward to intervene. At that time, 1
person from the group took out a revolver from his pants and fired 2 shots
quickly at Nagjiji, who fell down on the roadside. When Shaileshji
checked him, he saw blood coming out from Nagjiji’s chest. Thereafter,
he and Jeevanji Babuji Thakor took Nagjiji to Dharapur Hospital in the
vehicle of Pratapji, where the doctor declared him dead. He stated that he
had seen the person who fired the shots and identified accused Shaileshji
Balaji in Court as the person who fired at Nagjiji. He also identified
muddamal article no. 27 as the weapon that was in the hands of 1 of the
15 persons present at the time of the incident. The learned Sessions Court
found his evidence to be reliable and supportive of the prosecution case
regarding the firing. The Court noted that his version was consistent with
the evidence of other eyewitnesses. During cross-examination, he
admitted that no identification parade was conducted before the
Mamlatdar, that there were no bloodstains on his clothes.
25. The learned Sessions Court has rightly held that these aspects were
minor and did not affect the main part of his evidence that 2 shots were
fired directly at Nagjiji. After independently and carefully re-examining
the evidence, we find that the witness had immediately gone to the place
of incident on hearing the quarrel and had actively participated in taking
the injured to the hospital. His version is consistent with the complaint
and with the statements of other witnesses describing the incident. The
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absence of an identification parade or bloodstains on his clothes does not
weaken his evidence, especially when he stated that he was about 4 feet
away from the mob and clearly saw the shooter. His identification of
accused Shaileshji Balaji in Court and his identification of the weapon
support the prosecution case. His denial of suggestions of false
implication further strengthens his credibility. There is no material reason
to disbelieve his testimony. Therefore, the finding that accused Shaileshji
Balaji fired the fatal shots is properly established beyond reasonable
doubt, and the conviction under Section 302 of the Indian Penal Code is
justified.
26. We are placing reliance on the decision of the Hon’ble Supreme
Court in the case of Raja vs. State by the Inspector of Police in Criminal
Appeal No. 740 of 2018, in which it has clearly held that it is neither
possible nor advisable to fix any fixed rule about the time within which a
test identification parade must be conducted, nor can it be said that not
conducting such a parade is always fatal to the prosecution case. The
main and real evidence is the identification of the accused made by the
witness before the Court. A prior test identification parade is only meant
to support and strengthen that evidence by testing its reliability. If no test
identification parade is conducted, the identification made in Court does
not become inadmissible, and the value to be given to such identification
is always to be decided by the Court based on the facts and circumstances
of each case. If the Court finds that the identifying witness is truthful,
reliable, and had sufficient opportunity to see and observe the accused,
then the absence of a test identification parade does not weaken the
prosecution case.
27. On perusal of deposition of Jeevanji Babuji Thakor (PW-32, Exh.-
416), who testified that upon hearing the uproar, he reached the gate, as
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Nagjiji intervened to protect Becharji, Shaileshji Balaji drew a revolver
and fired two shots at Nagjiji’s chest and arm. Jeevanji Babuji Thakor
pressed the wound, assisted in lifting Nagjiji into Pratapji’s vehicle, and
identified the accused and muddamal article. In cross-examination, he
detailed the presence of three to four persons, four-foot distance from the
mob, and no seizure of his bloodstained clothes. He also deposed that
Balvantji Nagjiji struck him on the shoulder with a stick and Gamaji
Dhudaji assaulted him on the abdomen with a sickle, identifying the
muddamal sickle, though he could not specify who held the bamboo
stick. He admitted mentioning only the sickle injury in medical history
without naming assailants, denied injuries solely from the sickle, and
conceded not recording Gamaji’s possession or names in treatment
records.
28. As to injuries to Jivanji Babuji Thakor (PW-32, Exh.-416), the
complaint vaguely mentioned minor injuries by the mob without
specifics, neither the complainant nor Babuji attributed particular
assaults, Pratapji referenced Jivanji assisting in loading the deceased
without detailing injuries, admitting ignorance of assailants, Manaji and
Shaileshji omitted specifics on Jivanji’s assailants or weapons, with
Shaileshji confirming presence en route to hospital. The treating doctor
Dr. Dhavalbhai Babubhai Patel (PW-12, Exh.-330) recorded a 4×1 cm
abrasion with swelling on the left anterior abdomen, normal X-ray,
opined as simple possibly from fall or stick, with history mentioning only
sickle assault at noon without naming assailant or mentioning stick
injury. Attribution to Balvantji (stick on shoulder) is doubtful absent
medical corroboration of shoulder injury, and to Gamaji unproven due to
unnamed history. The case rests on solitary testimony marred by
inconsistencies with medical records omitting stick injury and names,
rendering linkages shrouded in doubt, while abdominal abrasion exists,
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causation by Gamaji’s sickle remains unsubstantiated.
29. On the allegation that Shaileshji Balaji aimed and fired the second
shot at Pratapji, with Nagjiji intervening, the complaint narrated only two
rounds fired directly at Nagjiji without reference to Pratapji, complainant
and Pratapji introduced this in depositions, creating material
embellishment. Eyewitness Babuji described shots directly at Nagjiji
without mentioning aiming at Pratapji or intervention, Manaji, Shaileshji
Rameshji, and Jivanji omitted this facet. This omission from
contemporaneous complaint and absence in multiple accounts evinces
post-facto improvement, undermining credibility and precluding proof of
attempt to murder under Section 307.
30. We further place reliance on the decision of the Hon’ble Supreme
Court in the case of Goverdhan and Anr. Vs. State of Chhattisgarh in
Criminal Appeal No.116 of 2011, wherein, the Hon’ble Supreme Court
has observed that minor discrepancies in deposition is not fatal. The
relevant paragraphs are as under:
55. This Court also reminded that while dealing with the evidence of
witnesses who are rustic, because of minor inconsistencies, the evidence
should not be ignored. It was held in in Prabhu Dayal v. State of
Rajasthan, (2018) 8 SCC 127 wherein dealing with witnesses from rustic
background it was observed as follows;
“18. It is a common phenomenon that the witnesses are rustic and
can develop a tendency to exaggerate. This, however, does not mean
that the entire testimony of such witnesses is falsehood. Minor
contradictions in the testimony of the witnesses are not fatal to the
case of the prosecution. This Court, in State of U.P. v. M.K. Anthony
[State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 : 1985 SCC (Cri)
105], held that inconsistencies and discrepancies alone do not merit
the rejection of the evidence as a whole. It stated as follows : (SCCPage 25 of 34
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p. 514-15, para10)
“10. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read as
a whole appears to have a ring of truth. Once that impression
is formed,it is undoubtedly necessary for the court to scrutinise
the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the witness
and whether the earlier evaluation of the evidence is shaken as
to render it unworthy of belief. Minor discrepancies on trivial
matters not touching the core of the case, hyper-technical
approach by taking sentences torn out of context here or there
from the evidence, attaching importance to some technical
error committed by the investigating officer not going to the
root of the matter would not ordinarily permit rejection of the
evidence as a whole. If the court before whom the witness
gives evidence had the opportunity to form the opinion about
the general tenor of evidence given by the witness, the
appellate court which had not this benefit will have to attach
due weight to the appreciation of evidence by the trial court
and unless there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some details
unrelated to the main incident because power of observation,
retention and reproduction differ with individuals. Cross-
examination is an unequal duel between a rustic and refined
lawyer. Having examined the evidence of this witness, a friend
and well-wisher of the family carefully giving due weight to
the comments made by the learned counsel for the respondent
and the reasons assigned to by the High Court for rejecting his
evidence simultaneously keeping in view the appreciation of
the evidence of this witness by the trial court, we have no
hesitation in holding that the High Court was in error in
rejecting the testimony of witness Nair whose evidence
appears to us trustworthy and credible.” (emphasis supplied)
19. …………………….
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20. The Court can separate the truth from the false statements in the
witnesses’ testimony. In Leela Ram v. State of Haryana [Leela Ram v. State
of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222] , this Court held as
follows : (SCC p. 534, para 12)“12. It is indeed necessary to note that one hardly comes across a
witness whose evidence does not contain some exaggeration or
embellishment — sometimes there could even be a deliberate
attempt to offer embellishment and sometimes in their over anxiety
they may give a slightly exaggerated account. The court can sift the
chaff from the grain and find out the truth from the testimony of the
witnesses. Total repulsion of the evidence is unnecessary. The
evidence is to be considered from the point of view of
trustworthiness. If this element is satisfied, it ought to inspire
confidence in the mind of the court to accept the stated evidence
though not however in the absence of the same.”
21. Moreover, it is not necessary that the entire testimony of a witness be
disregarded because one portion of such testimony is false. This Court
observed thus in Gangadhar Behera v. State of Orissa[Gangadhar Behera
v. State of Orissa, (2002) 8 SCC 381 : 2003 SCC (Cri) 32] : (SCC p. 392,
para 15)
“15. To the same effect is the decision in State of Punjab v. Jagir
Singh[State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC
(Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of Haryana
[Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526]
. Stress was laid by the appellant-accused on the non-acceptance of
evidence tendered by some witnesses to contend about desirability
to throw out the entire prosecution case. In essence prayer is to
apply the principle of falsus inuno, falsus in omnibus (false in one
thing, false in everything). This plea is clearly untenable. Even if a
major portion of the evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused,notwithstanding
acquittal of a number of other co-accused persons, his conviction
can be maintained. It is the duty of the court to separate the grain
from the chaff. Where chaff can be separated from the grain, it
would be open to the court to convict an accused notwithstanding
the fact that evidence has been found to be deficient to prove guilt of
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other accused persons. Falsity of a particular material witness or
material particular would not ruin it from the beginning to end. The
maxim falsusin uno, falsus in omnibus has no application in India
and the witnesses cannot be branded as liars. The maxim falsus in
uno, falsus in omnibus has not received general acceptance nor has
this maxim come to occupy the status of rule of law. It is merely a
rule of caution. All that it amounts to, is that in such cases testimony
may be disregarded, and not that it must be disregarded.”
31. Thus, we do not find any infirmities, either in evidence or the
conclusions arrived at by the learned Sessions Court, who has rightly
appreciated the ocular evidence of the eyewitnesses, namely, complainant
Becharji Naranji, injured witnesses Babuji Pradhanji, Jivanji Babuji,
Shaileshji Rameshji, and witnesses Pratapji Becharji and Manaji Devaji,
who unanimously deposed that at the time of the incident, accused
Shaileshji Balaji, armed with a firearm (pistol/tamancha), fired two shots
at the deceased Nagjiji, striking him in the chest and arm regions, leading
to his demise. The learned Sessions Court found this testimony credible
and consistent, corroborating the prosecution’s version of the homicidal
death. We find that as the witnesses’ accounts are natural, devoid of
material contradictions, and supported by the medical evidence; their
presence at the scene is unchallenged, and the minor discrepancies in
their descriptions of the firearm discharge do not undermine the core fact
of the accused’s direct involvement in the shooting, thereby establishing
the chain of events beyond reasonable doubt.
32. Regarding the discovery panchnama (Exh.-351), panch witness
Govindji Okhaji (Exh.-350) did not support the prosecution, rendering
him hostile, but the learned Sessions Court correctly placed reliance on
the corroborative testimony of the Investigating Officer, Ashokkumar
Kanubhai Kalasva (Exh.-430), who affirmed the panchnama’s veracity,
including the recovery of the firearm from the accused’s possession,
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which remained unshaken in cross-examination. It transpires that as the
IO’s evidence stands unimpeached and substantiates the discovery
process; the non-support by the panch does not vitiate the recovery when
independently corroborated, adhering to settled principles that such
evidence can still be probative if otherwise trustworthy and finds
corroboration from mitigating circumstances as rest upon by the
prosecution.
FSL EVIDENCE:
33. The Forensic Science Laboratory report (Exh.-500) unequivocally
establishes that the recovered firearm was functional, the bullet retrieved
from the deceased’s body (marked L1) matched the pistol, and the holes
in the deceased’s shirt (marked J) were caused by firearm discharge from
the same weapon; additionally, firearm discharge residues were detected
on swabs from accused Shaileshji and Dashrathji (marked M1 and M2),
indicating their handling of the weapon. The learned Sessions Court
rightly treated this as clinching scientific proof linking the accused to the
crime. We find that, as the FSL findings are objective, based on standard
ballistic and chemical analyses, and unrefuted; they not only confirm the
weapon’s use in the incident but also implicate both accused in its
possession and deployment, leaving no scope for doubt on the forensic
chain.
34. Applying the evidence to the charges, the prosecution failed to
prove criminal conspiracy under Section 120B, formation of unlawful
assembly under Section 141, membership under Section 142, rioting
under Section 146, or armed rioting under Section 148, as no evidence
showed accused conspiring at a common place, deliberating a shared
unlawful object, or using force in pursuance thereof. The complainant’s
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cross-examination revealed mere suspicion regarding accused Nos. 15,
16, and 17 summoning others, which cannot substitute for proof, other
witnesses provided no support, evidentiary gaps, inadmissible call
records, and unsubstantiated suspicion preclude establishing ingredients
beyond reasonable doubt. The land dispute serves as motive without
bridging to collective action. Thus, acquittal on Sections 147, 148, 149,
and 120B is justified.
35. On accusation of murder, as fall under Section 302, the ocular
evidence of eyewitnesses complainant Becharji Naranji Thakor (PW-2,
Exh.-158), injured Babuji Pradhanji Thakor (PW-3, Exh.-264) and
Jeevanji Babuji Thakor (PW-32, Exh.-416), Shaileshji Rameshji Thakor
(PW-29, Exh.-392), Pratapji Becharji Thakor (PW-4, Exh.-281), and
Manaji Devaji Thakor (PW-17, Exh.-356) unanimously attributed the
firing of two shots at Nagjiji by Shaileshji Balaji, leading to demise.
Their accounts are natural, consistent, and supported by medical evidence
ruling out alternative causes and linking injuries to firearm.
Identifications of the muddamal firearm and accused are reliable, free
from tutoring. Minor discrepancies do not undermine the core
involvement. The recovery, FSL report confirming functionality, bullet
match, shirt holes, and residues on Shaileshji and Dashrathji, clinch the
link. Thus, Shaileshji’s deliberate firing establishes murder beyond
reasonable doubt.
36. Regarding the charge falling under the Arms Act under Section
25(1)(a), an unlicensed firearm was procured illegally by Dashrathji from
Zahirkhan Abbas Khan for Rs.80,000 approximately three months prior,
handed to Shaileshji for use, and recovered from Dashrathji’s house.
Possession and use are proved through IO’s testimony and absence of
license, sanction (Exh.-473) validates the charge. Lack of purchase proof
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does not dilute when possession and abetment are evident.
37. The learned advocate for the appellant has relied upon Nanak
Chand vs State of Punjab reported in (1955) AIR 1955 SC 274, wherein
the Supreme Court held that a person charged under Section 302 read
with Section 149 cannot be convicted under Section 302 simpliciter
without a specific charge being framed, as the substantive offence is
distinct and separate from the offence charged with constructive liability
under Section 149, and such conviction is illegal and not merely irregular,
warranting setting aside and remand for retrial after proper framing of
charge.
38. However, the said decision does not assist the appellant in the
present case, as the charge here was framed under Section 302 read with
Sections 147, 148 and 149, but the learned Sessions Judge convicted
accused No. 2 solely on the basis of his individual, direct and overt act of
firing two shots at the deceased, which act was specifically attributed to
him from the inception of the case and proved beyond reasonable doubt
by consistent eyewitness testimonies and corroborated by the post-
mortem report (Exh.-132) establishing firearm entry-exit wounds and the
FSL report (Exh.-500) confirming the recovered pistol as the causative
weapon.
39. Unlike Nanak Chand (supra), where no substantive individual role
was alleged or proved and conviction rested purely on vicarious liability
after failure of the assembly charge, here the direct culpability of accused
No. 2 was the core of the prosecution case, putting him on full notice to
defend against the substantive offence of murder, and the acquittal of co-
accused arose from lack of proof of their individual participation rather
than vitiation of the assembly charge alone. The learned Sessions Judge
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did not convert a constructive liability conviction into substantive liability
but convicted on proved direct act, rendering the ratio of Nanak Chand
(supra) inapplicable and distinguishable on facts and charge framing.
40. The learned advocate for the appellant has further relied upon
Achhey Lal vs State of UP reported in (1978) 3 SCC 526, wherein the
Supreme Court held that where no individual act of offence is assigned to
the appellant, and he remains the sole convict after acquittal of 14 other
named accused charged under Sections 302, 325 and 147, the conviction
cannot stand in the absence of a finding that he constituted an unlawful
assembly of five or more persons (known, unknown, identified or
unidentified), as Section 149 requires such assembly for vicarious
liability.
41. However, this precedent likewise does not aid the appellant, as
unlike Achhey Lal (supra) where the conviction depended entirely on
constructive liability under Section 149 without any specific overt act
proved against the sole remaining accused, here accused No. 2’s
conviction rests squarely on his proven individual act of firing the fatal
shots, established through direct eyewitness evidence, post-mortem
confirmation of firearm injuries, and FSL linkage to the recovered pistol,
independent of any assembly requirement.
42. The learned Sessions Judge did not invoke vicarious liability for
the murder conviction but convicted accused No. 2 on his direct, personal
culpability, while acquitting the others for want of proof of their roles, not
because the assembly failed to exist but because their participation
remained uncorroborated. The case is thus factually and legally
distinguishable, as the substantive offence stands proved against accused
No. 2 irrespective of the fate of the assembly charge against others,
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rendering Achhey Lal (supra) inapplicable and of no assistance to the
appellant.
43. It is well settled that while evaluating the principle of falsus in uno,
falsus in omnibus, the Court is required to separate the truthful part of the
evidence from the false. In the present case, such separation is possible,
and while the prosecution case remains intact against the convicted
accused, the benefit of doubt has rightly been extended to the acquitted
accused. Hence, these citations do not justify interference or reversal.
44. The maxim falsus in uno, falsus in omnibus is merely a rule of
caution. Where witnesses are unreliable on particulars (e.g., associates’
involvement), the Court must scrutinise the rest, acting on reliable
corroborated portions. Here, exaggerations on conspiracy/multiple
assailants are rejected, but the substratum fatal shots by firearm,
corroborated by FSL/reports, medical evidence, and recovery sustains
conviction under Section 302 IPC for accused No. 2.
45. In conclusion, the cumulative evidence ocular, medical, recovery,
and forensic forms an unbroken chain proving the guilt of accused
Shaileshji Balaji Thakor under Section 302 of the Indian Penal Code and
of both accused Shaileshji and Dashrathji Hajurji Thakor under Section
25(1)(a) of the Arms Act, as rightly concluded by the learned Sessions
Court. We find no perversity, misappreciation, or legal error warranting
interference.
46. In the result, Criminal Appeal No. 193 of 2021 filed by the
appellant Thakor Shaileshji Balaji deserves to be dismissed. The
conviction under Section 302 IPC passed by learned Sessions Court is
upheld. In view of the foregoing reasons, Criminal Appeal Nos. 413 of
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2020 is dismissed. Conviction appeal i.e. Criminal Appeal No. 193 of
2021 alongwith Criminal Misc. Application (For Suspension of Sentence)
No. 6 of 2024 in Criminal Appeal No. 193 of 2021 is disposed of as it
does not survive, as above. Records be transmitted to learned Sessions
Court.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
MVP
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