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

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

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Approved for Reporting Yes No

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SHAMJI @ SUNIL @ DAKUDO S/O KALUBHAI MER

Versus

STATE OF GUJARAT

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Appearance:

MR P P MAJMUDAR(5284) for the Appellant1

MR RONAK RAVAL APP for the Respondent

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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 20/02/2026

ORAL JUDGMENT

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

1.This conviction appeal is directed against the judgment and order

of conviction dated 27.08.2013, passed by the learned Additional

Sessions Judge, Jetpur at Rajkot, in connection with Sessions Case

No. 64 of 2011, by which, the sole accused Samji @ Sunil @

Dakudo Kalubhai was convicted under Sections 302 of Indian

Penal Code and sentenced to suffer life imprisonment and fine

amount of Rs.1000/- and in default in payment of fine, to suffer

simple imprisonment of 3 months and also convicted and sentenced

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under Section 201 of the Indian Penal Code and is directed to

suffer 2 years imprisonment with Rs.300/- fine and in default

thereof, to suffer 7 days simple imprisonment.

2.The case of the prosecution, leading to conviction of the appellant

accused is as follows:

2.1This is a case of double murder. The names of deceased are Manish

Babubhai Makwana and Kaushal Rasikbhai Parekh. The deceased

and the appellant accused are resident of village: Jetpur at Rajkot

and before the incident, they were close friends. The incident of

murder was being occurred on 15.05.2011 in the noon hours at

Jetpur. Before the incident, the appellant accused was having

suspicion that his wife had an affair with deceased Manish

Babubhai and on that count, there was a quarrel between them. In

order to take revenge of the said relationship, the appellant accused

invited the deceased Manish Babubhai and Kaushal Rasikbhai for

having cold drinks at his home. The invitation was received on the

mobile of deceased Kaushal and at that time, the deceased Kaushal

Parekh and deceased Manish Makwana along with other two friends

namely Paresh Chandubhai @ Hakli and Manish @ Karabhai were

assembled near the temple of the village. Both the deceased went to

the house of the accused appellant. The appellant accused offered

the fruit beer to both the deceased. In the fruit beer, the appellant

accused had mixed the poisonous substance (Sodium Nitrite). Both

the deceased after drinking the poisonous fruit beer left the house of

the appellant accused and came at the temple place. After sometime,

both the deceased went into semi unconscious state of mind. The

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witness Paresh @ Hakli noticed them and accordingly, they were

taken to the private Hospital at Village: Jetpur and before treatment

could be administered to them, they passed away.

2.2On the basis of registration of accidental death, the Jetpur Police

sent the dead body for postmortem. The cause of death was due to

cardio respiratory failure due to injection of poison, which later on

identified as Sodium Nitrite.

2.3The FIR came to be filed by the brother of the deceased Kaushal

Rasikbhai Parikh on 20.05.2011, inter-alia alleging that, after the

sad demise of his brother, they were in trauma, and thereafter, the

friend of deceased Kaushal told and informed that, both the

deceased were invited by the appellant accused for taking cold

drinks at his home and on account of his repeated request on the

mobile phone, both the deceased agreed to go at the home of the

appellant and after sometime, both the deceased found in the semi

unconscious state of mind, allegedly, lying on the bench of temple.

In short, the complainant alleged in the complaint that both the

deceased died because of administration of the poison by the

appellant in the fruit beer, which they had consumed at the instance

of the appellant and the motive behind administration of the poison

was to take revenge against the deceased Manish, because he had an

affair with the wife of the appellant.

2.4On registration of the offence, the appellant accused came to be

arrested on 21.05.2011 and during his remand period, by way of

demonstration and reconstruction panchnama, voluntarily disclosed

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that how he managed the poison Sodium Nitrate and administered it

in the fruit beer. The IO, during the course of investigation,

recorded the statements of witnesses, collected the necessary

evidence with regard to purchase of fruit beer and poison Sodium

Nitrate to the appellant accused and sent the seized articles to the

FSL for chemical analysis and after due investigation, found

sufficient evidence against the appellant for the offence of double

murder and causing disappearance of the evidence followed by

filing of the chargesheet before the Jurisdictional Magistrate, who

committed the case to the Court of Sessions at Jetpur. The Trial

Court framed the charges, which the appellant accused denied the

charges and claimed to be tried.

3.The prosecution, in order to examine the case against the accused,

examined as many as 21 witnesses and exhibited 29 documents, as

per the below mentioned tabular.

Oral Evidence :

PW 1 – Exh.10Praveenbhai Jayrambhai Solanki, panch witness

PW 2 – Exh.12Nareshbhai Ratibhai Chouhan, panch witness

PW 3 – Exh.16Henasbhai Bhupatbhai Vaghela, panch witness

PW 4 – Exh.18Kamleshbhai Rameshbhai Bheda, panch witness

PW 5 – Exh.20Samerbhai Sitarbhai Tarkehsha, panch witness

PW 6 – Exh.21Manish@ lalo Rasikbhai Parekh, complainant

PW 7 – Exh.24Sikandarbhai Kadarbhai Vahanvati

PW 8 – Exh.27Maheshbhai Vitthalbhai Vanjani

PW 9 – Exh.28Jayanti@ Jitesh Babubhai Makwana

PW 10 – Exh.30Paresh@ Hakli Chandubhai Gajera

PW 11 – Exh.32Kasambhai Mamadbhai Shama

PW 12 – Exh.34Ajitbhai Karimbhai Parmar

PW 13 – Exh.36Dr. Sanjaykumar Raghunandanprasad Sinha

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PW 14 – Exh.39Bharakumar Mohanbhai Khanpara

PW 15 – Exh.42Kevalbhai Ashokbhai Jaiswal

PW 16 – Exh.44Naresh@ Papu Govindbhai Ghangha

PW 17 – Exh.47Ramjibhai Shamatbhai Bagda

PW 18 – Exh.48Ashokbhai Gajjananbhai Trivedi

PW 19 – Exh.51Anirudhsinh Juvansinh Jadeja, IO

PW 20 – Exh.67Ramagori Purshottambhai Rajguru, PSO

PW 21 – Exh.70Balwantbhai Prabhatbhai Sonara, IO

Documentary Evidence :

Exh.11 Inquest panchnama of deceased Manishbhai

Exh.13 Inquest panchnama of deceased Kaushalbhai

Exh.17 Panchnama of place of offence

Exh.19 Panchnama of place of offence

Exh.22 Complaint

Exh.23 Arrest panchnama

Exh.25 Demonstration panchnama

Exh.33 Discovery panchnama

Exh.37 Manishbhai PM report

Exh.38 Kaushalbhai PM report

Exh.40 Police yadi for map of place of offence

Exh.41 Map of place of offence

Exh.43 Signed papers by Ketan Ashokbhai Jaiswal

Exh.45 Bill of Sodium Nitrate from Pradeep Chemical

Exh.46 Attendance sheet of workers in factory

Exh.48 Letter by complainant

Exh.50 Yadi for registration of offence

Exh.52 Copy from register of accidental death no. 28/11

Exh.53 Copy from register of accidental death no.29/11

Exh.54-55Order for handing over investigation to head constable

R.S. Bagda

Exh.56 Order for handing over investigation to PI A.V. Jadeja

Exh.57 Letter to Deputy director, Scientific laboratory to

inspect mudammal articles

Exh.58 Letter to Deputy director, Scientific laboratory to

inspect mudammal articles

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Exh.59 Letter to Deputy director, Scientific laboratory to

inspect mudammal articles

Exh.60 Receipt of articles by FSL

Exh.61 Forwarding letter

Exh.62 Record of test conducted by investigating mobile van,

FSL

Exh.68 Original FIR

Exh.69 Station diary copy

4.After closure of the prosecution evidence, the appellant accused

was questioned under Section 313 Cr.P.C., to which, he stated that,

he is innocent and his name is not ‘Dakudo’ and he is not known as

‘Dakudo’. He is not working in the factory of processing of

printing Sari and he does not know the deceased Manish and

Kaushal and at the relevant time, he was not having a mobile phone

and he did not have invited both the deceased at his home by

calling them on the mobile of Kaushal. The accused lastly denied

the allegation of illegal relation of his wife with Manish.

5.Though opportunity was extended, no evidence was tendered from

the side of the appellant accused.

Trial Court’s finding:

6.The learned Trial Court, after considering the oral and

documentary evidence, as well as the submissions made on behalf

of the parties, found the appellant guilty under Sections 302 and

201 of the Indian Penal Code and sentenced him, as indicated

above. The learned Trial Court, recorded that, the prosecution has

proved the chain of circumstances and each circumstance, as relied

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by the prosecution, has been conclusively proved pointing towards

the guilt of the accused and none else. The learned Trial Court held

that the prosecution has successfully proved motive behind the

murder and deceased died because of administration of the

poisonous substance – Sodium Nitrate and the appellant accused

had procured it and administered the same in the fruit beer.

7.Being aggrieved by, and dissatisfied with the judgment of

conviction and sentence, the appellant has come up with present

appeal.

8.Evidence adduced by the prosecution:

We would like to have a cursory look at the evidence

adduced by the prosecution through its witnesses:

8.1Dr. Sanjay R. Sinha (PW.13) : This doctor being a Medical

Officer, Government Hospital, Jetpur, had conducted postmortem on

the body of deceased Manish B. Makwana and Kaushal Rasikbhai

Parikh. Both the deceased died due to cardio respiratory failure on

account of consummation of poison. During the postmortem, the

doctor did not have noticed any external or internal injuries on the

body of both the deceased, but there were signs of consummation of

poison as the cyanosis present over nail beds of all fingers and toes.

The witness had kept pending the final cause of death because the

reports of chemical analysis of viscera was awaited and the report of

FSL (Exh.16) shows that, the presence of poisonous substance

sodium nitrate found in the stomach contents and other pieces of

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liver, lung, spleen and kidneys. In nutshell, the medical evidence

(P.M. Note - Exh.37 and 38) along with the viscera report (Exh.16)

proves that, the cause of death of both the deceased was due to

administration of poison.

8.2Manish @ Lala Rasik Parekh (PW.6) : This witness is the brother

of deceased Kaushal Parekh. This witness has no personal

knowledge about the incident. He was informed by PW.10 – Paresh

@ Haklo Chandubhai Gajera. The witness came to know from

PW.10 about the serious condition of his brother and deceased who

were found on the bench of village temple. This witness had

expressed suspicion on the death of his brother and during the

investigation of accidental death, his statement was recorded and in

his statement, he had disclosed that, his brother is died in mysterious

circumstances and he is making inquiry on the death of his brother

and due to trauma and mental shock, he could not be in a position to

disclose further on this aspect and in future he will disclose the

entire facts of the incident and after five days of the incident i.e. on

20.05.2011, he lodged an FIR alleging against the accused that, his

brother and deceased Manish were called upon by the appellant-

accused at his home and made them to drink a fruit bear mixed with

the poisonous substance because the appellant-accused was having

suspicion that, the deceased Manish had an affair with his wife. The

basis of the FIR was the information given by PW.10 – Paresh @

Haklo who happened to be friend of both the deceased and he had

seen that both the deceased went to the house of the appellant-

accused. In the cross-examination, defense has tried to establish that,

the appellant-accused was not known as “Dakudo @ Sunil”.

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However, the testimony of the witness on the identification of the

accused has not been shaken. The defense has tried to establish that,

after delay of five days, the appellant has been wrongly implicated

in the offence. In the cross-examination, the witness has explained

that, at the relevant time, he was in shock and trauma which would

be the reason for delay in lodging the FIR.

8.3Jitesh Babulal Makwana (PW.9): This witness is the brother

of deceased Manish Babubhai Makwana and according to

prosecution case, the deceased by his oral statement disclosed before

the witness that, “he drunk cold drink at the house of Dakuda”. The

witness was informed by someone about the incident and he

immediately rushed at the place where both the deceased were lying

on the bench of village temple. Both the deceased were being taken

in the goods rickshaw for the treatment at the private clinic and

while on the way to hospital, the head of the deceased Manish was

in the lap of this witness and in the semi state of mind, the deceased

Manish disclosed that, he drunk cold drink at the house of Dakuda.

8.4Paresh @ Haklo Chandubhai Gajera (PW.10) : This witness

was the close friend of both the deceased and at relevant time, he

was in the company of both the deceased. This witness has stated in

the chief-examination that, on 15.05.2011 at about 12 o’ clock in

noon, he along with two deceased and one another friend, Manish @

Karo were assembled at the village temple and at that time, deceased

Kaushal received a phone call on his mobile. The mobile was dialed

by appellant-accused to call upon deceased Kaushal and Manish at

his home for taking cold drinks. The deceased Kaushal had shared

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this information with all the friends. The witness and other friends

cautioned the deceased Manish and Kaushal that, please do not go to

the house of the appellant as on earlier occasion, the appellant had a

quarrel on the suspected affair of his wife with Manish. The witness

has further stated that, during the discussion, the appellant again

rang up and asked the deceased Kaushal and Manish to come to his

house and also informed that, he is going to purchase cold drinks

and he will give a miss call. The witness has further stated that, the

deceased Kaushal had informed him that, there was a miss call on

his mobile phone from the appellant. The witness has further stated

that, on account of insistence of the appellant, both the deceased

agreed to visit the house of the appellant. The witness has further

stated that, the appellant had only invited both the deceased and

requested not to come with other friends. The witness has further

stated that, due to earlier dispute, he and other friends, accompanied

to both the deceased up to the house of the appellant and they had

seen that, both the deceased went into the house of the appellant and

he stayed outside the house of the appellant for some time so that, in

emergency, he could help both the deceased. The witness has further

stated that, after some time, when he did not find any unusual things,

he along with other friends, left the place and after some time, when

he was at the pan shop nearby the temple, he noticed that, both the

deceased lying on the bench of temple and they were in the semi

unconscious state of mind. The witness has further stated that, with

the help of pan shop owner and others, both the deceased

immediately taken to the private hospital and meanwhile, he had

informed the brother of the deceased Manish. The witness has

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further stated that, both the deceased were declared dead and at the

hospital, he made conversation with the brother of the deceased

Kaushal about the party hosted by the appellant-accused at his

house.

In the cross-examination, the defense has tried to establish

that the appellant-accused was not known as “Dakuda @ Sunil” and

there were other persons known as Dakuda in Jetpur village.

However, the testimony of the witness on this aspect is not shaken

and he stood firm on the identification of the accused. The defense

has tried to establish that, there is unexplained delay in recording his

statement during the investigation which would render his evidence

unreliable. However, in the cross-examination, the witness has stated

that, due to fear of police, he did not have disclosed at the earliest

about the party hosted by the accused at his home.

8.5Keval Jaiswal (PW.15) : This witness is the pan shop owner doing

his business in the name of “Jignesh Pan & Riddhi Siddhi Pan”. This

witness in his chief-examination, has stated that, on 15.05.2011, in

the noon hours, the appellant came to his shop for purchasing cold

fruit bears which he had packed as parcel and sold it to the appellant.

He also identified the accused in the court further stating that, he

who had come to his shop for purchasing the fridge fruit bear. In the

cross-examination, defense has tried to establish that, due to rush

hours in the entire day, it would not be possible for him to remember

each and every customer who usually come to his shop for

purchasing pan or cold drinks. However, the witness stood firm on

the issue of purchasing fruit bear by the appellant from his shop.

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8.6Naresh @ Pappu Govind Dhandha (PW.16) : This witness is

doing his printing business in the name of “ Shakti Bandhej” in

Jetpur town. The work of the factory is mainly to give different

colours to the Bandhani Saris and for preparing the different colours,

the contents of Sodium Nitrate is being used for printing saris. The

witness for chemical purpose, purchased the sodium nitrate in bulk

from the local trader namely Pradip Chemicals and one parcel of jute

bag weighing 50 kgs. being sold by the trader. In order to process of

colouring, the man power is required for further processing of

colouring. The appellant accused from 03.05.2011 to 08.05.2011

was employed as a master for doing laboring work. The copy of the

relevant page of muster showing the name of the appellant as

labourer was produced by the witness along with the purchase bills

of sodium nitrate were being produced at Exh. 45 and 46 by the

witness. This witness has stated in chief examination that, the

appellant was employed by him and the muster was having been

prepared and maintained by him manually. It is the case of the

prosecution that, while the appellant was under employment of the

witness, he secretly obtained the some portion of poisonous

substance Sodium Nitrate from the 50 Kg. bag and then he mixed it

with the fruit beer allegedly drunk by both the deceased. The witness

has identified the accused in the Court and reconfirmed that, during

the period as referred, the appellant accused worked with him as a

master in his factory. In the cross-examination, the defense has tried

to establish that, the Exh. 45 – abstract of the muster, is being

concocted to create evidence against the accused, however, the

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witness stood in the cross-examination on this aspect and did not

agree with the suggestion that, the appellant had never work in his

factory and the name Sunil is not in any manner connected with the

appellant herein.

8.7.Ramjibhai Bagda (PW-17) : This witness on the day of incident i.e.

on 15.07.2011, was on duty as a Police Head Constable with Jetpur

City Police Station and after registration of the accidental death, he

came into charge of the inquiry. During the inquiry, after preparing

the inquest, the dead body of both the deceased were being sent by

him for post mortum at the Jetpur Government Hospital and also

recorded the statement of the brother of the deceased namely Manish

@ Lala Rasik Parekh and same is produced at Exh. 48. In the cross-

examination, the witness has admitted that, neither the complainant

Manishbhai nor the witness PW-10 of anyone, had disclosed before

him that both the deceased were being called by the appellant

accused at his home and made him to drink a poisonous substance

mixed in a fruit beer.

8.8 Ashokkumar Gajanan Trivedi (PW-18) : This witness had served

as PSI with Jetpur City Police Station and on 20.05.2011, when he

was on duty, he recorded the FIR allegedly disclosed by complainant

Manish Parekh, which he has produced at Exh. 22. Except recording

the FIR, he did nothing so far investigation is concerned. In the

cross-examination, it is stated by the witness that, he had an

opportunity to examine the case papers of accidental death and had

noticed that, two persons died in a mysterious circumstances. It is

further stated in the chief-examination that, at the time of recording

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the FIR, he himself noted down the contents of the FIR, and on that

basis the typed FIR came to be prepared. It is denied by the witness

that, the FIR being prepared by the advocate of the complainant. It is

further stated that, there is a delay of 5 days in lodging the FIR and

the reason for delay as explained by the complainant, is mental

shock and trauma.

8.9 Anirudhsinh Jadeja (PW.19):This witness being a Police

Inspector of City Police Station, Jetpur, had been entrusted with the

investigation of the case. The witness in his chief-examination has

stated that, during the investigation of the cease, he had recorded the

statements of the witnesses, drew the panchnama of scene of

occurrence, arrested the appellant-accused and during his remand

period, at the disclosure statement of the accused, seized and

recovered the necessary articles from the place of incident and sent

the seized articles to FSL for chemical analysis. In the cross-

examination, the I.O. has admitted that, before 20.05.2011, for

disclosing relevant facts of the incident, the witnesses had never

come before him. It is also admitted by the witness that, the witness

Paresh @ Hakli, in his police statement, has not stated the full name

of the accused. He has also admitted that, for the identification of the

accused, he did not have hold the identification parade through

Executive Magistrate. It is denied by the witness that, there are three

to four persons, residents of Jetpur village whose names are

“Dakudo”. It is admitted by the witness that, the witness Paresh @

Hakli has not shown the place of incident. It is also admitted by the

witness that, during the inquiry of A.D. Case, the panchnama of

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place of occurrence was being drawn by the concerned officer. It is

also admitted by the I.O. that, there is no provision in the law for

drawing the demonstration and/or reconstruction panchnama. The

witness has denied to the suggestion that, the name of the appellant

Shamji @ Sunil @ Dakudo as mentioned in the case records, is

being falsely mentioned to implicate him in the serious case of

murder. It is admitted by the witness that, the person named as

“Shamji @ Sunil @ Dakudo” is not working in the factory named as

“ Shakti Bandhej” in Jetpur, however, the witness has voluntarily

clarified that, the person known as Sunil was working in the factory

and the same person had worked from 03.05.2011 to 08.05.2011.

The witness has also admitted that, in the Jetpur Town, so many

factories are using sodium nitrate for preparing colour, to be used for

printing saris. The witness has admitted that, during the

investigation, it was not revealed that, deceased Manish was having

illicit relations with anyone. Lastly, it has been denied by the witness

that, the accused in the name of Dakudo is being falsely implicated

in the offence by him.

8.10Balwantbhai Sonara (PW.21) : This witness being a P.S.I. of City

Police Station, Jetpur, took the charge of the investigation from the

P.S.I. Jadeja and except filing of the chargesheet, he has not

investigated the case.

9.We have heard learned counsel Mr. P.P. Majmudar appearing for

and on behalf of the appellant-accused and Mr. Ronak Raval,

learned Additional Public Prosecutor for the respondent-State.

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Submissions:

10.Mr. Majmudar, learned counsel while assailing the impugned

judgment of conviction and order of sentence, has urged that:

(a)Learned trial court grossly erred while convicting the accused-

appellant without appreciating the evidence in the right prospective;

(b)The case of prosecution rests on circumstantial evidence and the

circumstances as relied by the prosecution have not been

conclusively proved and established, pointing only to guilt of the

accused and the main link in the chain of circumstances like the

procurement of the poison sodium nitrate by the accused and

administering the same in the fruit bear and made both the deceased

to drink on 11.05.2011, have not been proved and established. In this

regard, it was contended that:

(i)The recovery panchas of the sample sodium nitrate from the factory

have not supported to the case of prosecution, nor the I.O. has

proved the contents of panchnama and therefore, the inference of

stealing the sodium nitrate by the accused from the factory of PW.6

was possessed and used by the accused for the purpose of

administering the same to the deceased could not be raised and no

reliance can be placed on this circumstance to prove that, the

deceased died of poison said to have been administered by the

accused.

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(ii)That, the purchase of cold drinks by the accused has also not been

proved as it is humanly impossible for the vendor to remember the

purchase made by each and every customer.

(iii)The factum of employment of the appellant-accused with the “

Shakti Bandhej” factory owned by PW.6 is not proved and

established as except name Sunil, nothing being mentioned in the

extract of muster (Exh.45). In the facts of the case, the accused being

implicated as Shamji @ Sunil @ Dakudo, son of Kalubhai Mer and

the prosecution miserably failed to prove that, the accused was

known as Sunil.

(iv)In the facts of the case, the incident of administering the poison took

place on 15.05.2011 between 12:45 to 13:15 and the FIR by the

brother of deceased Manish was being filed on 21.05.2011. The star

witness PW.10 – Paresh @ Haklo Gajera had knowledge that both

the deceased were invited for taking cold drinks by the appellant-

accused and he had seen that, both the deceased took their entry

inside the house of the appellant. Before the deceased would take

their entry inside the house of the appellant, the mobile call was

being dialed by the accused on the mobile of deceased Kaushal.

Despite of this, during the investigation, no CDR details of the

mobile phone of the accused and deceased persons were collected by

the I.O. to prove that, the appellant-accused had called the deceased

Kaushal and invited him at his house for drinking cold drinks. The

star witness (PW.10) was throughout with the family of both the

deceased. However, for a period of five days, despite the presence of

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the police, the complainant or the star witness (PW.10) though

having opportunity to disclose the true facts about drinking cold

drinks by both the deceased at the house of appellant, none has

reported the true facts to the police. Even, the complainant whose

statement prior to the FIR came to be recorded by the Head

Constable Bagda, no any facts of taking cold drinks at the house of

the appellant being disclosed by him. Even, none of the witnesses

have seen both the deceased persons coming out from the house of

the appellant. In such circumstances, unexplained long delay in

lodging the FIR and recording the statements of material witnesses,

during the investigation would render the evidence of such witnesses

unreliable and no reliance can be placed to prove and establish that

on the day of incident, both the deceased were invited by the

appellant-accused at his home and made them to drink the poisonous

substance sodium nitrate allegedly mixed in the fruit beer and after

drinking it, the deceased had left the house of the appellant and took

their seat at the bench of village temple.

(v)In the facts of the case, the motive was the illicit relationship with

the wife of the appellant-accused. In the case of circumstantial

evidence, the motive assumes considerable importance and nothing

on record to show that, prior to the incident, there was a quarrel

between the appellant and the deceased Manish on the issue of illicit

relationship and therefore, when the motive is not proved and

established, the charge cannot be said to have been proved beyond

reasonable doubt against the accused.

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(vi)Lastly, the material evidence to connect the accused in the crime has

not been obtained and collected by the I.O. The CDR details of the

mobile phone of the accused and deceased persons were not

collected to prove that the appellant had called the deceased Manish

at his house on the day of incident.

11.In such circumstances as referred above, it was submitted that, the

entire conviction rendered by the trial court is based on conjectures,

surmises and suspicion and suspicion howsoever strong cannot take

place of proof and it is settled position of law that, the burden lies on

the prosecution to prove the allegations beyond reasonable doubt

and in the facts of the present case, the chain of events as referred

above, have not been proved and established and none of the

circumstances relied by the prosecution have been proved beyond

reasonable doubt and those circumstances either cumulatively or

individually are insufficient to establish the guilt of the accused and

therefore, it is prayed that, there being merits in this appeal and same

may be allowed and the judgment of conviction and order of

sentence may be set aside and the appellant may be acquitted of all

charges.

12. Mr. Ronak Raval, learned Additional Public Prosecutor for the

respondent-State vehemently opposed the appeal and contended that

the Trial court has not committed any error in holding the appellant-

accused guilty of the offence and further contended that the

prosecution in this case, has proved beyond reasonable doubt the

charge against the appellant accused. The identity of the accused is

proved and established as at the time of arrest, the name Shamji @

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Sunil @ Dakudo being referred and the arrest panchnama has been

admitted by the defense and therefore, when the witnesses were

knowing the appellant-accused prior to the incident, the question of

his identity does not arise and there was no need for the I.O. to hold

the T.I. Parade. The witness (PW.10) being a close friend of both the

deceased, had witnessed that the appellant had invited both the

deceased at his home and after some conversation, both the deceased

in the presence of the witness, had gone to the house of the appellant

and on this aspect, the evidence of PW.10 is acceptable, trustworthy

and nothing being brought on record to substantiate his

creditworthiness and therefore, in absence of CDR details, the

evidence of PW.10 is sufficient to prove and establish that, the

deceased were invited by the accused at his home for drinking cold

drinks and after accepting the invitation, they had gone to the house

of the accused. The sample of sodium nitrate being taken at the

house of the accused and as per the FSL Report, it was poison

sodium nitrate and same being procured by the accused from the

factory of PW.6 and by purchasing the fruit beer from the shop of

PW.15, the deceased were offered to drink the fruit beer mixed with

poison. In such circumstances, the evidence of witnesses on the

circumstances as referred above, are consistent and there is no

material contradiction and so far delay in lodging the FIR and

delayed examination of the witnesses is concerned, there is

sufficient explanation offered by the witnesses which further proves

that the version of PW.10 and other witnesses are convincing and

reliable and delay has been sufficiently explained.

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13.In such circumstances, as referred above, learned Additional Public

Prosecutor submitted that the incriminating circumstances, relied by

the prosecution, are conclusively proved and established and the

same is formed complete chain pointing towards the guilt of the

accused and there is no gap left in the chain of evidence and

therefore, there being no merits in the appeal and the same may be

dismissed.

14.The prosecution case rests on the circumstantial evidence. The law

with regard to the conviction on the basis of circumstantial evidence

has been discussed in detail by the Supreme Court in the case of

Harishchandra Ladaku Thange Vs. State of Maharashtra

reported in AIR 2007 Supreme Court 2957. It will be useful to

reproduce the relevant paras:-

“8.It has been consistently laid down by this Court that

where a case rests squarely on circumstantial evidence, the

inference of guilt can be justified only when all the incriminating

facts and circumstances are found to be incompatible with the

innocence of the accused or the guilt of any other person. (See

Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v.

State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State

of Karnataka (AIR 1983 SC 446), State of U.P. v. Sukhbasi &

Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir Singh v.

State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee

v. State of M.P. (AIR 1989 SC 1890). The circumstances from

which an inference as to the guilt of the accused is drawn have to

be proved beyond reasonable doubt and have to be shown to be

closely connected with the principal fact sought to be inferred

from those circumstances. In Bhagat Ram v. State of Punjab (AIR

1954 SC 621) it was laid down that where the case depends upon

the conclusion drawn from circumstances the cumulative effect of

the circumstances must be such as to negative the innocence of

the accused and bring home the offences beyond any reasonable

doubt.

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9.We may also make a reference to a decision of this Court

in C. Chenga Reddy & Ors. v. State of A.P. (1996 (10) SCC 193),

wherein it has been observed thus : "21. In a case based on

circumstantial evidence, the settled law is that the circumstances

from which the conclusion of guilt is drawn should be fully

proved and such circumstances must be conclusive in nature.

Moreover, all the circumstances should be complete and there

should be no gap left in the chain of evidence. Further, the

proved circumstances must be consistent only with the hypothesis

of the guilt of the accused and totally inconsistent with his

innocence."

10.In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79)

it was laid down that when a case rests upon circumstantial

evidence, such evidence must satisfy the following tests: (1) the

circumstances from which an inference of guilt is sought to be

drawn, must be cogently and firmly established; (2) those

circumstances should be of a definite tendency unerringly

pointing towards guilt of the accused; (3) the circumstances,

taken cumulatively, should form a chain so complete that there is

no escape from the conclusion that within all human probability

the crime was committed by the accused and none else; and (4)

the circumstantial evidence in order to sustain conviction must

be complete and incapable of explanation of any other hypothesis

than that of guilt of the accused and such evidence should not

only be consistent with the guilt of the accused but should be

inconsistent with his innocence."

11. In State of U.P. v. Ashok Kumar Srivastava (1992 Crl. LJ

1104) it was pointed out that great care must be taken in

evaluating circumstantial evidence and if the evidence relied on

is reasonably capable of two inferences, the one in favour of the

accused must be accepted. It was also pointed out that the

circumstances relied upon must be found to have been fully

established and the cumulative effect of all the facts so

established must be consistent only with the hypothesis of guilt.

12.Sir Alfred Wills in his admirable book `Wills'

Circumstantial Evidence' (Chapter VI) lays down the following

rules specially to be observed in the case of circumstantial

evidence: (1) the facts alleged as the basis of any legal inference

must be clearly proved and beyond reasonable doubt connected

with the factum probandum; (2) the burden of proof is always on

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the party who asserts the existence of any fact, which infers legal

accountability; (3) in all cases, whether of direct or

circumstantial evidence the best evidence must be adduced which

the nature of the case admits; (4) in order to justify the inference

of guilt, the inculpatory facts must be incompatible with the

innocence of the accused and incapable of explanation, upon any

other reasonable hypothesis than that of his guilt; and (5) if there

be any reasonable doubt of the guilt of the accused, he is entitled

as of right to be acquitted.

13.There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touchstone

of law relating to circumstantial evidence laid down by this

Court as far back as in 1952.

14. In Hanumant Govind Nargundkar and another v. State of

M.P. (AIR 1952 SC 343) it was observed thus: "It is well to

remember that in cases where the evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to

be drawn should in the first instance be fully established, and all

the facts so established should be consistent only with the

hypothesis of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they should be

such as to exclude every hypothesis but the one proposed to be

proved. In other words, there must be a chain of evidence so far

complete as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused and it must be such

as to show that within all human probability the act must have

been done by the accused."

15. A reference may be made to a later decision in Sharad

Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622).

Therein, while dealing with circumstantial evidence, it has been

held that the onus was on the prosecution to prove that the chain

is complete and the infirmity of lacuna in the prosecution cannot

be cured by a false defence or plea. The conditions precedent in

the words of this Court, before conviction could be based on

circumstantial evidence, must be fully established. They are : (1)

the circumstances from which the conclusion of guilt is to be

drawn should be fully established. The circumstances concerned

must or should and not may be established; (2) the facts so

established should be consistent only with the hypothesis of the

guilt of the accused, that is to say, they should not be explainable

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on any other hypothesis except that the accused is guilty; (3) the

circumstances should be of a conclusive nature and tendency; (4)

they should exclude every possible hypothesis except the one to

be proved; and (5) there must be a chain of evidence so complete

as not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must show that

in all human probability the act must have been done by the

accused.”

15.In the facts of the present case, the accused is facing the charge of

committing murder of two persons by administrating them the

poison Sodium Nitrate. The law on this aspect is well settled. The

Supreme Court in the case of Anant Chintaman Lagu Vs. State of

Bombay (AIR 1960 Page-500) held that three elements are

necessary to be proved to establish a case of poisoning; (i) that death

took place by poisoning; (ii) that the accused had the poison in his

possession; (iii) that the accused had an opportunity to administer

the poison to the deceased. The Supreme Court further observed that

discovery of poison may not always be possible as administration of

poison is done in secrecy. The Supreme Court in the said judgment

further observed that “A case of murder by administration of poison

is almost always one of secrecy. The poisoner seldom takes another

into his confidence, and his preparations to the commission of the

offence are also secrete. He watches his opportunity and

administers the poison in a manner calculated to avoid its detection.

The greater his knowledge of poison, the greater the secrecy, and

consequently, the greater the difficulty of proving the case against

him.” Recently, the Supreme Court in the case of Hariprasad @

Kishan Sahu Vs. State of Chhattisgarh (2023 Live Law Supreme

Court 968), referring the landmark case of Sharad Birdhi

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Chandsadha Vs. State of Maharashtra (1984 (4) SCC 116),

reiterate the circumstances to be proved in cases of murder by

poison viz. (a) clear motive for the accused to give poison; (b) death

due to poison; (c) accused should have the poison with him; (d)

opportunity to administer poison.

16.The facts of this case are to be considered on the touchstone of the

law which has been laid down by the Supreme Court.

17.In the case on hand, the prosecution has relied upon the following

circumstances to establish its case:

(i)On 15.05.2011, between 12:45 to 13:15 hours, at the Jetpur Town,

Dist.: Rajkot, the appellant accused called upon the deceased Manish

Babubhai Makwana and Kaushal Rashik Parekh at his home for

drinking cold-drinks fruit beer.

(ii)When the deceased were called upon by the appellant accused, they

were assembled at the temple area of the town, accompanied by their

two friends viz. Paresh @ Haklo Gajera (PW:10) and Manish @

Kara.

(iii)The appellant accused was having suspicion that the deceased

Manish had an affair with his wife and that is why they were called

upon at his house.

(iv)The appellant accused before both the deceased could reach at his

house, he managed to get to parcels of cold-drinks nearby the pan-

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shop owned by PW:15 Keval Jaiswal.

(v)The appellant accused before the incident had worked with the

factory named Shakti Bandhesh, run and owned by PW:16 Naresh

@ Pappu Govind Dhandha and during his employment, secretly he

had managed to get poisonous substance Sodium Nitrate allegedly

lying in the factory area.

(vi)On account of the invitation given by the appellant accused, both the

deceased went to the house of the appellant and made them to drink

glass of fruit beer mixed with poison Sodium Nitrate.

(vii)After drinking the fruit beer mixed with the poison, both the accused

left the house of the appellant accused and come to temple area of

the town and sit on the bench of the temple and due to

administration of the poison, they went into semi unconscious state

of mind and they were noticed by the PW:10 and others and

immediately, taken to the nearby hospital where they declared dead

and the chemical analysis report would indicate the poison Sodium

Nitrate found in the viscera and matched with the sample taken from

the factory.

18.In the aforesaid facts and circumstances, the question that arises for

our consideration is whether the aforesaid circumstances – (i) to (vii)

forms a chain pointing only to the guilt of the accused and the facts

are capable of giving rise to inference of the guilt of the accused

appellant ?

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19.Admittedly, the prosecution case rests only on the circumstantial

evidence. After careful examination of the evidence on record, the

material witness is PW:10 Paresh @ Haklo Chandubhai Gajera as on

15.05.2011, he along with other friend Mr.Manish @ Karo were

present at the time of taking decision by the deceased whether the

invitation given by the appellant accused for drinking cold drinks at

his home would be accepted or not ? It is admitted facts that the

witness PW:10 did not have disclosed at the earliest before the

police that the deceased were invited by the appellant accused at his

home for taking cold drinks and on that ground, the defence has

attacked that the witness is got up witness and his presence as

claimed is doubtful and in absence of any sufficient explanation for

not disclosing the true facts at the earliest creates a doubt on the

story of the prosecution. Upon close scrutiny of the testimony of

PW:10, we found that due to the untimely death of his two friends,

he was in shock and he was in apprehensive state of mind that the

police would might be booked in the incident. It is true that the

witness PW:10 in his deposition stated that from the date of the

incident to the registration of the offence, he has not stated to anyone

that the deceased were called upon by the appellant at his house. On

the other hand, the complainant PW:6 Manish Parikh who is brother

of the deceased Kaushal admitted that on the day of incident he

came to know from PW:10 that the appellant had called upon his

brother at his home. We are conscious about the settled legal

position that prompt interrogation of witness under Section 161

Cr.P.C. lends assurance to the Court about the credibility of the

witnesses. However, it is equally settled that mere a delay

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examination of the witnesses is not sufficient to discard the reliable

evidence, when he made a reasonable explanation for not disclosing

the facts of occurrence. In the facts of the present case, the PW:10

being a labourer and belongs to a lower strata of the society, not

disclosing the facts of the investigation soon after the incident would

be justified as he was under apprehension that police might be

arrested him in the offence. In such circumstances, the delayed

examination of the witness for a period of five days would not a

reason to discard his evidence on the aspect of invitation of the

appellant and other things. The witness was the friend of the

appellant as well as the deceased and he was knowing the past of the

appellant as well as deceased Manish and he had clarified that the

appellant was having suspicion in his mind that the deceased Manish

might have relations with his wife and before the incident, there was

a quarrel between them and that is why, the PW:10 cautioned both

the deceased that under the pretext of giving cold drinks, the

appellant may take revenge and beat them, but the repeated calls in

the presence of PW:10 made to deceased Manish by the appellant

would be the reason for agreeing and accepting the invitation of the

appellant. It is further required to be noted that the PW:10 after both

the deceased went inside the house of the appellant, kept a watch

outside the house of the appellant so that in any case, if something

has happened in the house, he would come to rescue of both the

deceased and after some time, the witness felt that nothing would be

happened in the house and therefore, he along with other friend

Manish @ Kara left the place. In such circumstances, on careful

examination of the evidence of PW:10, his presence at the time of

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incident at the place with both the deceased is proved and

established and we have no any doubt about it and he has passed the

test that he is telling truth and he is not deposing against the accused

because of his relation with both the deceased. In such

circumstances, the first, second and third circumstance, as relied by

the prosecution are being proved and established. In other words, on

the basis of evidence of PW-10, the circumstance of meeting of the

accused with the two deceased persons at his home on 15.05.2011 in

the noon hours, is being proved and established and they had been

offered to drink the cold drink by the appellant and it is further

proved that, the relation of the appellant and deceased Manish was

not cordial because the appellant was having suspicion in his mind

that, there was an affair with his wife by the deceased Manish and

said facts were in the knowledge of PW-6 and other friends Manish

@ Kara and none else. The prosecution has dropped the witness

Manish @ Kara as the necessary facts already been unfolded by the

material witness PW-10 and to avoid the repetition, the prosecution

did not have examined the witness Manish @ Kara. On non-

examination of material witness, the Supreme Court in its various

judgments, held and observed that, the Court is required first to

assess the trustworthiness of the evidence available on record and if

the court finds the evidence worthy of being relied on, then the

testimony has to be accepted and acted upon though there may be

other witnesses available who could also have been examined, but

were not examined. In Takhaji Hiraji Vs. Thakore Kubersinh

(2001) 6 SCC 145, on the issue of non-examination of other

witnesses, the Supreme Court laid down the ratio that, if the

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witnesses already examined are reliable and the testimony coming

from their mouth is unimpeachable, the Court can safely act upon it,

uninfluenced by the factum of non-examination of other witnesses.

In the facts of the present case, as discussed above, the evidence of

PW-10 Manish @ Kara has been examined carefully and after

reading his evidence as a whole, we find a ring of truth in his version

and his conduct also found natural.

20.The defense has raised the doubt on the prosecution case on the

ground that, there was a delay in giving the FIR by the brother of the

deceased and there is a material contradiction in the evidence of

complainant and PW-10, who was lastly seen in the company of

deceased. It is true that, the FIR came to be lodged for the incident

dated 15.05.2011 on 21.05.2011. The evidence on record shows that

the complainant PW-6 had received the information from the PW-10

that both the deceased were lastly in his company and had gone to

the house of the appellant because of the invitation given by the

appellant for taking cold drinks. In this regard, PW-10 has stated

that, during 5 days, he did not have disclosed the said facts to any

one. So far as delay in lodging the FIR is concerned, the

complainant had clarified that they were in process of getting

necessary inputs and due to untimely death of his brother, he was in

trauma and shock. It is relevant to note that, the statement of the

complainant during the inquiry of accidental death came to be

recorded by PW-17 Ramji Bagda, Head Constable. The copy of the

statement duly signed by the complainant is on record at Exh. 48. In

the last para of the statement, the complainant had stated that “there

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is no enemy of his brother and there was no any financial liability

on him and therefore, he having reasonable suspicion on his death

and he is making inquiry on the aspect of the incident and later on

he will disclose in detail because, at this stage, they are in trauma

and shock and therefore, he does not want to disclose anything

more.” We have carefully read the statement of the complainant

Exh. 48. The delay of 5 days in lodging the FIR is satisfactorily

explained by the complainant as the reporting of incident was under

further inquiry and due to sudden death of his brother that too

without any reason, he could not be in a position to disclose the

entire facts on the day of incident or thereafter. We are conscious

abut the settled position of law that the First Information Report in a

criminal case is an extremely vital and valuable piece of evidence

for the purpose of corroborating the oral evidence adduced during

the course of trial. The object of insisting of prompt lodging of

report to the police of commission of offence, is to obtain early

information regarding the circumstances, in which the crime was

committed, names of actual culprits and the part played by them as

names of the eye-witnesses present at the scene of occurrence. The

FIR cannot be treated as substantive piece of evidence and it can

only be used to corroborate or contradict the informant’s evidence

and undue or unreasonable delay in lodging the FIR may give rise to

suspicion which put the court on guard to look of the possible

motive and explanation for the delay and consider its effect on the

trustworthiness or otherwise on the prosecution version. Ofcourse,

delay in lodging the FIR by itself cannot be regarded as the

sufficient ground to draw an adverse inference against the

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prosecution case nor could it be treated as fatal to the case of the

prosecution. The Court has to ascertain the causes for delay, having

regard to the facts and circumstances of each case and the if the

causes are not attributable to any effort to concoct a version, mere a

delay by itself could not be a fatal to the prosecution case. (Hari

Prasad Kishan Sahu Vs. State of Chhatisgarh, (2024) 2 SCC

557). In the present case, as discussed above, the complainant who

was under shock and trauma, as without any reason, his brother died

due to administration of poison and he does not want to disclose the

facts received from PW-10 without further inquiry and his

satisfaction and that is why, when his statement was recorded (Exh.

48), he reserved his right to disclose the true facts at the later stage

and also disclosed that why he is not disclosing the entire facts.

Therefore, the explanation offered by the complainant PW-6 for

lodging delayed FIR for about 5 days, are convincing and in the

present case, the delay of 5 days would not be fatal to the

prosecution case and it would not be a ground to draw an adverse

inference against the prosecution case.

21.The defense has raised the issue that the IO failed to obtain a call

details of the appellant accused and deceased Manish, as in order to

prove the act of the appellant, calling upon the deceased at his house

and to support the version of PW-10, the call details evidence is vital

and utmost important and in absence of this evidence, the version of

PW-10 cannot be accepted. In the preceding paras we have

discussed at length about the reliability and trustworthiness of

evidence of PW-6. It is no doubt true that the CDR evidence having

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not been collected by the IO. The evidence of CDR is not the

substantial evidence but it is a corroborative piece of evidence. In

the present case the evidence of PW-6 on the aspect of calling upon

deceased Manish by the appellant accused on his mobile call, found

reliable and trustworthy as in his presence, the appellant called the

deceased Kaushal and later on deceased Kaushal had discussed with

the PW-10 about the invitation received. In such circumstances, the

non-production of evidence of CDR would not in any manner fatal

to the prosecution nor it creates a doubt about the version of the PW-

10.

22.In view of the aforementioned reasons, it is proved and established

that on 15.05.2011 in the noon hours, the deceased were called upon

by the appellant accused at his home for drinking cold drink and at

that time, the accused was having suspicion in his mind that the

deceased Manish had an affair with his wife.

23.In the facts of the present case, there is no dispute on the aspect of

death occurred due to poison – Sodium Nitrate, as the report of

chemical analyzer clearly proves the contents of poison Sodium

Nitrate found in stomach contents and in the other parts of the body

of the deceased. Thus, therefore, we have no hesitation to held that

both the deceased died due to poison Sodium Nitrate.

24. It is the obligation on the part of the prosecution to prove that at

relevant time, accused had the poison with him and by calling both

the deceased at his home, he had mixed the poison Sodium Nitrate in

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

25.Reverting back to the facts of the present case, PW-10 is the

material witness and he had seen that both the deceased went into

the house of the appellant – accused. The witness was present near

by the house for sometime and in absence of any untoward incident,

he left the place and within short span of time, he went to the pan

shop situated near the temple of the town and after taking pan, he

noticed that, both the deceased lying on the bench of the temple and

they were in the semi conscious state of mind. So far as arranging

and purchasing fruit beer by the appellant is concerned, the evidence

of PW-15 Keval Jaiswal shows that, in the noon hours, the appellant

had come to his shop and purchased two parcel of cold drink – fruit

beer and he received Rs.10/- from the accused. It was argued that,

the witness is got up witness and it is prudently not believable that,

the pan shop owner was having memory in his mind that, the

appellant had come to his shop, because, during the day time, there

were at least 100 or more customers usually come to the shop. In our

opinion, Jetpur town is a small town and the appellant being regular

customer, it could be possible for the seller to keep a good rapport

with him and naturally there is no difficulty for him to remember the

name of the customer and what things he has purchased. Therefore,

on 15.05.2011 in the noon hours the appellant visited the shop of

PW-15 and purchased a cold drink – fruit beer.

26.It is the case of the prosecution that the appellant accused was

employed on daily wages by PW-16 Naresh @ Pappu Govind

Dhandha and as per the extract of muster, he had worked from

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03.05.2011 to 08.05.2011 and the copy of the same is produced at

Exh. 46. We have carefully examined the evidence of PW-16. The

witness is running the factory in the name of ‘Shakti Bandhej’ in

Jetpur and his main work is to printing sarees (bandhani) and in

order to give different colours to the sarees, the use of Sodium

Nitrate is necessary for making colour and for that, he had purchased

50Kgs bag of Sodium Nitrate from Dipak Chemicals and invoice

thereof is produced at Exh. 45. The abstract of muster, as per the

witness’s version, being maintained in the handwriting of appellant

– accused and according to say of the witness, he being a master,

was managing the labour affairs. In such circumstances, the version

of PW-16 is reliable and acceptable and there is no any reason for

him to depose against the appellant. Therefore, this evidence of PW-

16 proves that, before the incident, the appellant accused was

employed in the factory owned by PW-16 and he was knowing that,

for preparing the colour, Sodium Nitrate chemical is being used.

26.Now the question is whether the accused after stealing some portion

of Sodium Nitrate from the factory of PW-16, had kept the said

poison with him and on 15.05.2011, by inviting both the deceased at

his home, made them to drink the said poison mixed in the fruit

beer? After careful examination of the evidence on record, it proves

that on 15.05.2011 in the noon hours i.e. at 12-00, both the deceased

were called upon by the appellant accused and thereafter, the

appellant accused purchased fruit beer from the shop of PW-15 and

gave a missed call, which was the final call and then both the

deceased went to the house of the appellant accused which is nearby

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the temple of the town. The offence period as shown was between

12-45 to 13-15. On this aspect, the evidence of PW-10 further

clarifies that within 20 to 25 minutes, he again came at the pan shop

situated near the temple and after purchasing pan, he noticed the

presence of the accused at the bench of temple. In such

circumstances, the proved circumstances, as referred above, rise to

legitimate inference that the accused was an opportunity to steal the

Sodium Nitrate poison and same was kept by him in his possession,

and on the day of incident, he had specifically invited only two

persons and after purchasing fruit beer, he prepared the drink mixed

with the poison and offered the deceased to drink it as if it was a

fruit beer i.e. cold drink. The period was so short that no other

possibility of administering the poison by someone can be presumed

or inferred and the distance of the appellant’s house and town

temple, was also too short and that is why both the deceased who

used to assemble at the temple of the town had come on the bench of

the temple and due to administration of the poison they went into

semi unconscious state of mind. The defense has raised the issue

that no one has seen both the deceased while taking exist from the

house of the appellant. In our opinion, there is no need to further

establish that the deceased had left the appellant’s house. The time

period was so short that there was no possibility for the deceased to

take visit of another place and drink the cold drink etc. In such

circumstances, when the appellant was alone at his house and as a

pre-planned, the manner in which, he procured the poison and then

called upon the deceased at his house, would certainly proves that

the accused had an opportunity to administer the poison to the

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

deceased and as held by the Supreme Court in the case of Anant

Lagu (supra), in a case of murder, by administration of poison is

always in secrecy and that is why, he had destroyed the evidence

like steel container and glasses allegedly used in the commission of

the crime.

27.For the reasons recorded and having regard to the facts, evidence,

the incriminating circumstances, as referred in para- 17 of this

judgment, stand firmly established and chain of events conclusively

suggest and lead only to the irresistible conclusion that the appellant

accused alone is the purported of the crime alleged. As a result, the

prosecution has succeed in proving the charge of double murder by

adducing cogent, acceptable and credible evidence against the

appellant – accused.

28.In the result, we do not find any merits in the appeal and same

deserves to be dismissed and accordingly, it is dismissed. The

appellant is on bail. He is directed to surrender before the jail

authority to serve remaining part of sentence within 8 weeks. His

bail bond stands cancelled and surety is discharged. Registry is

directed to R&P to the trial Court forthwith.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

P.S. JOSHI

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