R/CR.A/804/2012 JUDGMENT DATED: 13/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 804 of 2012

With

R/CRIMINAL APPEAL NO. 1182 of 2011

With

R/CRIMINAL APPEAL NO. 1183 of 2011

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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SUNIL @ KALIYO BHARATBHAI

Versus

STATE OF GUJARAT

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Appearance:

CRIMINAL APPEAL NO. 804 OF 2012

MR BHARAT B. NAIK, SENIOR ADVOCATE With MR VAIBHAV A

VYAS(2896) for the Appellant(s) No. 1

CRIMINAL APPEAL NOS. 1182 AND 1183 OF 2014

MR MOUSAM R YAGNIK(3689) for the Appellant(s) No. 1

MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 13/01/2026

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1.Being aggrieved and dissatisfied with the judgment and order dated

30.04.2012 passed by the learned Additional Sessions Judge, Court No.5,

City Civil and learned Sessions Court, Ahmedabad in Sessions Case

No.199/2011, whereby the appellant-accused came to be convicted for

the offences punishable under Section 302 of the Indian Penal Code and

Section 135(1) of the Bombay Police Act, the appellant – accused has

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preferred Criminal Appeal No.804 of 2012 under Section 374(2) of the

Code of Criminal Procedure, 1973 (“the Code” for short).

2.Whereas, the judgment and order of acquittal dated 20.04.2011

passed by the learned Additional Sessions Judge, Court No.7, City Civil

and learned Sessions Court, Ahmedabad in Sessions Case No.255/2010

with Sessions Case No.256/2010 has been assailed, whereby the

respondent-accused came to be acquitted for the offences punishable

under Sections 302, 452, 323, 504, 506(2) and 120-B of the Indian Penal

Code read with Section 135(1) of the Bombay Police Act, the appellant –

complainant has preferred Criminal Appeal No.1182 of 2011 and

Criminal Appeal No.1183 of 2011 under Section 372 of the Code.

3.Since all the three appeals arise out of the same incident and

involve connected accused persons, they have been heard together and

are being disposed of by this common judgment.

4.The brief facts leading to the filing of the present appeals are as

under:

4.1.The complainant - Devendrakumar Shankarlal Oswal, a resident of

Ahmedabad, was running a business in a rented shop situated at Nirant

Complex, CTM Road, from the landlord, viz. Mansingh Tilakdhari

Thakur. There was a dispute regarding vacation of the premises, leading

to prior threats and complaints. On a previous occasion, the landlord and

his associates had allegedly broken into the premises and removed goods,

resulting in a police complaint and arrest of some accused, who were later

released on bail. The complainant had shifted residence but continued the

business at the shop. The landlord and his associates continued to issue

threats to vacate the shop.

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4.2.On 20.03.2006, some of the accused in the acquittal cases allegedly

threatened the complainant not to open the shop. On 21.03.2006, further

threats were issued to the complainant and a nearby vendor. On

22.03.2006, at about 13:30 hours, while the complainant was at the shop

and had stepped out briefly to get change for a customer who had come to

sell scrap, the appellant-accused in Criminal Appeal No.804 of 2012

along with two others (who are absconding) arrived on a motorcycle,

entered the shop, and inflicted multiple stab wounds on the customer with

a sharp-edged weapon, causing his death. The complainant witnessed the

incident upon returning and informed the police. The deceased was taken

to L.G. Hospital, where he was declared dead at about 14:40 hours.

4.3.A complaint was lodged at GIDC Vatva Police Station for offences

under Sections 302, 452, 212, 323, 504, 506(2), 120-B of the Indian Penal

Code and Section 135(1) of the Bombay Police Act, registered as C.R.

No.I-58/2006. Investigation ensued, including recovery of the weapon,

clothes, blood samples, and forensic analysis. Some accused were

arrested immediately, while others later or remain absconding. Charge

sheets were filed separately due to staggered arrests. The case against the

appellant-accused in Criminal Appeal No.804 of 2012 was committed to

the learned Sessions Court and registered as Sessions Case No.199/2011.

The cases against the respondent-accused in Criminal Appeal Nos.1182

of 2011 and 1183 of 2011 were committed and registered as Sessions

Case No.255/2010 and Sessions Case No.256/2010, which were tried

together.

4.4.In Sessions Case No.199/2011, upon conclusion of evidence, the

learned Sessions Court convicted the accused under Section 302 of the

Indian Penal Code (life imprisonment with fine of Rs.500/-, in default

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one month simple imprisonment) and Section 135(1) of the Bombay

Police Act (one month rigorous imprisonment with fine of Rs.100/-, in

default seven days simple imprisonment), sentences to run concurrently.

In Sessions Case No.255/2010 with Sessions Case No.256/2010, the

learned Sessions Court acquitted the accused of all charges.

5.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 for each case:

CRIMINAL APPEAL NO.804 OF 2012

~:: Oral Evidence ::~

Sr.

No.

Particular Exh.

1.

Devendrakumar Shankarlal Oswal – Complainant

PW-1

8

2.Rehanabanu Majidkhan Pathan – PW-2 12

3.Shankarlal Bhagwandas Oswal – PW-3 13

4.Rasikbhai Kantibhai Thakkar – PW-4 16

5.Mahendrabhai Manilal Gilat – PW-5 18

6.Manoj Ambalal Makwana – PW-6 20

7.Harishbhai Tolaji Chaudhary – PW-7 21

8.Gautam Nathalal Prajapati – PW-8 22

9.Lokesh Shivcharan Gupta – PW-9 23

10.Indraprakash Janakprakash Mishra – PW-10 25

11.Dr. Bhargav Becharbhai Zaveri – PW-11 26

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Sr.

No.

Particular Exh.

12.Abhimanyu Dineshkumar Singh – PW-12 28

13.Vasantaben P.K. Swami Yadav – PW-13 29

14.Mukeshkumar Abhirajbhai Chaudhary – PW-14 30

15.Umang Ashwinbhai Shah – PW-15 32

16.Jyotindra Amrutlal Upadhyay – PW-16 34

17.Nathubhai Parmabhai Parmar – PW-17 50

~:: Documentary Evidence ::~

Sr.

No.

Particular Exh.

1.Complaint 9

2.Panchnama of physical condition of accused 17

3.

Panchnama of seizure of accused's clothes and

weapon

19

4.Copy of post-mortem note 27

5.Copy of complaint 31

6.Copy of SIM card bill 33

7.Report of charge officer 35

8.Panchnama of scene of offence 36

9.

Panchnama of seizure of motorcycle and mobile

phone

37

10.Panchnama of seizure of accused's blood sample38

11.Yadi from L.G. Hospital 39

12.Post-mortem form 40

13.Notification regarding prohibition of arms 41

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Sr.

No.

Particular Exh.

14.Certificate regarding treatment of deceased 42

15.Dispatch note for muddamal to FSL 43

16.Letter regarding receipt of muddamal at FSL 44

17.Acknowledgment of return of muddamal from FSL45

18.FSL report 46

19.Serological report 47

20.Physics report 48

21.Certified copy of FIR 51

CRIMINAL APPEAL NOS. 1182 AND 1183 OF 2012

~:: Oral Evidence ::~

Sr.

No.

Particular Exh.

1.Devendrakumar Shankarlal Oswal Jain 18

2.Gautambhai Somabhai Patel 20

3.Sunil alias Sushil Ishwardas Khatvani 22

4.Sengal Rajendra Ramanlal 23

5.Rasikbhai Kantibhai Thakkar 24

6.Sanjaybhai Mohanlal Solanki 26

7.Alpesh Ramanbhai Patel 27

8.Radheshyam Amarnath 29

9.Dr. Bhargav Becharbhai Zaveri 35

10.Kishor Shantilal Rajput 38

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Sr.

No.

Particular Exh.

11.Nileshbhai Maheshbhai Koshti 42

12.Mahendrabhai Manibhai Gilatar 44

13.Manojkumar Ambalal Makwana 46

14.Mavjibhai Jetaji Thakor 47

15.Mayurbhai Bharatbhai Kapadiya 49

16.Laxmanbhai Hemrajbhai Rabari 50

17.Gautambhai Nathabhai Prajapati 51

18.Shankarlal Bhagwanji Oswal Jain 52

19.Lokesh Shivcharan Gupta 53

20.Indraprasad Janakprasad Mishra 54

21.Harishbhai Tolaji Chaudhary 55

22.Raghuvir Jivandas Bava 56

23.Mahendrasinh Jasvantsinh Sisodia 59

24.Nathubhai Parmabhai Parmar 62

25.Manilal Kohyabhai Maliwala 64

26.Rehanabanu Majidkhan Pathan 67

27.Jyotindra Amrutlal Upadhyay 68

28.Rajen Mahendrabhai Desai 84

~:: Documentary Evidence ::~

Sr.

No.

Particular Exh.

1Original complaint 19

2

Panchnama of seizure of clothes from deceased's

body and blood sample after PM

21

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Sr.

No.

Particular Exh.

3

Panchnama of physical condition of accused Jaiveer

and Sunil

25

4

Panchnama of seizure of mobile from accused

Jaiveer

28

5Panchnama of scene of offence 30

6Post-mortem note 36

7Police yadi for post-mortem/post-mortem form37

8

Panchnama of search of accused Atul and Ravi and

seizure of Bajaj Discover motorcycle, Panasonic

mobile and Nokia mobile

43

9

Panchnama of seizure of clothes and weapon from

accused Sunil

45

10

Panchnama of seizure of helmet from accused

Jaiveer

48

11

Yadi from Vatva Police to Executive Magistrate for

identification parade (exhibit given for signature

only)

57

12

Panchnama of identification parade of accused

Vishal alias Bhikhu

58

13

Copy of notification by City Police Commissioner

regarding prohibition of arms

60

14

Complaint presented by witness Nathubhai

Parmabhai Parmar

63

15

Certified copy of complaint given by witness

Shankarlal Bhagwanji Oswal Jain to witness Manilal

Kohyabhai Maliwala

64

16Report under Section 157 of the Code 69

17Inquest panchnama 71

18Panchnama of seizure of blood sample from accused 72

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Sr.

No.

Particular Exh.

Sunil

19

Panchnama of seizure of mobile from accused Hitesh

Barot

73

20Yadi from L.G. Hospital 74

21Dispatch note for muddamal to FSL 75

22FSL acknowledgment 76

23Letter regarding receipt of muddamal at FSL77

24FSL report 78

25FSL serological report 79

26FSL physics report 80

27FSL scene examination report 82

6.Mr. Bharat B. Naik, learned Senior Advocate for the appellant in

Criminal Appeal No.804 of 2012 submitted that the impugned judgment

of conviction does call for interference as the same is based solely on the

testimony of the complainant, who is an interested witness having deep-

rooted enmity with the landlord and his associates, providing a strong

motive for false implication. It was contended that the complainant's

version suffers from material inconsistencies regarding the description of

the motorcycle, the number and nature of injuries inflicted, and the

sequence of events, particularly his brief absence to fetch change and

immediate sighting of the entire assault upon return, which appears

improbable. The learned Senior Advocate further submitted that no

independent witness corroborated the presence or act of the accused, and

the nearby shopkeeper referred to in the deposition was not examined by

the prosecution. Emphasis was laid on the fact that several panch

witnesses turned hostile and denied knowledge of the recoveries,

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rendering the panchnamas of the weapon, clothes, and blood samples

wholly unreliable and inadmissible. It was argued that the forensic

reports, even if accepted, suffer from a broken chain of custody due to

delayed recoveries and lack of corroboration, and do not conclusively

link the muddamal to the accused beyond reasonable doubt. The learned

Senior Advocate vehemently contended that in the absence of motive

against the deceased (an unrelated customer), absence of test

identification parade, and failure to recover the motorcycle described by

the complainant, the chain of circumstantial evidence remains

incomplete. It was further submitted that the medical evidence does not

rule out alternative possibilities, and the conviction under Section 135(1)

of the Bombay Police Act is unsustainable as possession and public

carrying of the weapon stand unproven. Relying on settled principles that

conviction cannot be based on uncorroborated testimony of an interested

witness and that every reasonable doubt must ensure to the benefit of the

accused, the learned advocate urged that the prosecution has failed to

prove its case beyond reasonable doubt, warranting acquittal by setting

aside the impugned judgment.

6.1Mr. Naik, learned Senior Advocate appearing for the appellant,

however, confined his arguments to the issue of sentence. It is submitted

that the learned Sessions Court erred in imposing a sentence of life

imprisonment, as the facts and circumstances of the case indicate that the

offence committed by the appellant does not amount to murder. It is

further submitted that, the act would at the highest fall within the

category of culpable homicide not amounting to murder, punishable

under Section 304 Part I or Part II of the Indian Penal Code. In view of

the above submissions, Mr. Naik prayed that the appeal deserves to be

allowed to the limited extent of modification of sentence, and that the

judgment of conviction and the order of sentence passed by the learned

Sessions Court be suitably altered in accordance with law.

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7.The learned advocate for the appellant in Criminal Appeal

Nos.1182 of 2011 and 1183 of 2011 submitted that the impugned

judgments of acquittal require interference, primarily relying upon the

deposition of the complainant, which establishes prior threats, conspiracy,

and involvement of the accused in the offence. The medical evidence

confirms fatal injuries, and the chain of circumstances points to their

guilt. It was contended that the learned Sessions Court erred in acquitting

the accused despite sufficient evidence.

8.The learned advocate for the appellant in Criminal Appeal No.804

of 2012 submitted that the impugned judgment requires interference as

the testimony of the complainant is unreliable, there are contradictions in

medical evidence, no independent corroboration, and the recovery of

weapon is doubtful. It was contended that the learned Sessions Court

erred in convicting the accused solely on the basis of interested testimony

without sufficient proof beyond reasonable doubt.

8.1The learned APP appearing for the respondent-State submitted that

the conviction is well-founded on the eye-witness account, corroborated

by medical, forensic, and recovery evidence, warranting no interference.

9.Having heard the learned advocates for both sides and perused the

depositions of the witnesses, documentary evidence, and the judgments of

the learned Sessions Court, it appears that the testimony of the

complainant, who is the key eye-witness, is credible regarding the direct

act of stabbing by the convicted accused but insufficient to establish

conspiracy against the acquitted accused.

10.The prosecution has produced the panchnama for seizure of the

accused-appellant’s clothes and weapon at Ex. 19, which, as per the

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prosecution, was prepared on the basis of information given by the

accused-appellant. According to the prosecution, acting on this

information, the police recovered the clothes allegedly worn by the

accused-appellant at the time of the offence and the weapon allegedly

used in the offence, and the panchnama has been exhibited.

11.The panch witnesses Mahendrabhai Manilal Gilat (PW-5, Ex. 18)

and Manoj Ambalal Makwana (PW-6, Ex. 20) did not support the

prosecution case and turned hostile, but they admitted that the signatures

on the panchnama are theirs. The prosecution case is that the

investigating officer prepared the panchnama on the basis of voluntary

information given by the accused-appellant stating that he had given the

offence time clothes and the muddamal weapon to Vasantaben. The

police then went there and recovered the said articles in the presence of

panchas. The prosecution states that the truthfulness of this recovery and

panchnama is proved by the oath testimony of the investigating officer

Jyotindra Amrutlal Upadhyay (PW-16, Ex. 34). The prosecution further

relies upon Vasantaben P.K. Swami Yadav (PW-13, Ex. 29), who stated

that in 2006 the police came to her house, searched the premises, and

took her signature on a paper. On this basis, the prosecution asserts that

the police searched Vasantaben’s house, drew the panchnama at Ex. 19,

and lawfully recovered and seized the accused-appellant’s clothes and the

muddamal weapon. The investigating officer thereafter forwarded the

seized articles, marked as J (accused’s shirt), K (accused’s pant), and L

(muddamal chopper), to the FSL under dispatch note Ex. 43.

12.During investigation, the prosecution obtained the serological

report (Ex. 47) and the Physics Department report (Ex. 48) from the FSL.

As per Ex. 47, human blood of “AB” group was found on Sample A

(blood-stained soil from the scene), Sample C (blood-stained plastic piece

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from the scene), Sample I (deceased’s shirt), Sample F (deceased’s pant),

Sample G (deceased’s underwear), and Sample H (deceased’s blood

sample). The same “AB” group human blood was also found on Sample J

(accused’s shirt), Sample K (accused’s pant), and Sample L (muddamal

chopper), i.e., the articles recovered based on the accused-appellant’s

information. The prosecution contends that this forms scientific evidence

connecting the accused-appellant with the offence.

13.As per Ex. 48, the FSL Physics Department opined that the cut

marks on Sample I (shirt) and Sample F (pant) could have been caused by

Sample L (chopper). The prosecution therefore contends that the cut

marks on the deceased’s clothes match the muddamal chopper recovered

pursuant to the accused-appellant’s disclosure from Vasantaben’s house,

and that the presence of the deceased’s “AB” group blood on the chopper

and on the accused-appellant’s clothes further strengthens the link

between the accused-appellant and the offence.

14.It is stated that there is no inquest panchnama at Ex. 14 in the

exhibited documentary record, and that the prosecution has tendered the

panchnama of the scene of offence at Ex. 36, while the condition of the

body is otherwise described in the post-mortem documents. The deceased

was identified as Majidkhan Munir Khan Pathan, and the description of

the body and clothing is stated to be consistent with the post-mortem

examination, namely that the deceased was wearing a cream-coloured

checkered shirt and a chocolate-coloured pant, both blood-soaked and

bearing sharp weapon cut marks, and that injuries were present on the left

upper arm and the back of the left thigh. On this basis, it is asserted that

the deceased, aged 24, resident of Khanwadi, Ramol Road, suffered sharp

weapon injuries on the left upper arm and left thigh causing

corresponding cut marks on the shirt and pant, and that, as per Ex. 48,

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these cut marks were caused by the muddamal chopper Sample L

recovered pursuant to the accused-appellant’s disclosure from

Vasantaben’s house, thereby supporting the case that the injuries were

inflicted by the accused-appellant using that chopper.

15.The prosecution relies upon the oath testimony of the post-mortem

doctor Dr. Bhargav Becharbhai Zaveri (PW-11, Ex. 26) and the post-

mortem note Ex. 27. The doctor stated that on 23.03.2006 the body was

brought vide yadi and that the deceased was a 24-year-old male. The

doctor described the clothes on the body, including a blood-stained long-

sleeved shirt with a 4 x 3 cm “L”-shaped cut on the upper left sleeve, a

blood-stained and mud-soiled brown pant with 2 large cut marks on the

left side below the waistband (one 28 cm below and the other 34 cm

below), and blood-stained brown underwear. He noted rigor mortis, post-

mortem lividity on the back, and swelling of the left scrotal area. The

doctor noted external injuries including (1) a 3.5 x 1.5 cm incised wound

up to the muscle on the back of the left upper arm, and (2) 2 gaping

incised wounds on the upper outer left thigh separated by about 5 cm, one

measuring 1.5 x 0.5 cm and about 1 cm deep, and another similar injury

below. He stated that these injuries were ante-mortem and sufficient in

the ordinary course of nature to cause death. He also described internal

findings, including pale organs, stomach contents of about 200 ml,

swelling of the left testicle, and that about 50 ml blood sample was

collected, sealed, and handed over to the police. He opined that death was

due to haemorrhagic shock from the injuries and that the injuries

described in Column 17 were sufficient to cause death in the ordinary

course of nature. On being shown the muddamal chopper (Article 27), he

stated that the Column 17 injuries and the cut marks on clothing could

have been caused by it.

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16.In cross-examination, the doctor stated that no weapon was shown

to him earlier for opinion, that incised wounds and stab wounds are

different, that he cannot certify with certainty that the injuries were

caused by the muddamal weapon, that death occurred about 12 hours

prior to the post-mortem, that he had no treatment details, that the injuries

in Column 17 were not on a vital part, and that with timely and adequate

treatment the deceased could have survived. The defence therefore

contends that the doctor cannot definately say the muddamal caused the

injuries, that the injuries were not on vital parts, and that death may not

have resulted from them and could have been prevented with treatment. It

is stated that this defence contention deserves acceptance because the

corresponding cut marks on the deceased’s clothes are supported by the

FSL Physics report as being caused by the muddamal chopper, but the

claim regarding possible survival with timely treatment is not speculative

and can be treated as evidence showing lack of intention to cause death. It

is further stated that the doctor has still clearly opined that the Column 17

injuries were ante-mortem and sufficient to cause death in the ordinary

course of nature. On an overall reading of PW-11 (Ex. 26), Ex. 27, Ex.

47, and Ex. 48, it is asserted that the death occurred in the ordinary course

of nature due to the injuries described in Column 17 caused by the

muddamal chopper, but that the accused-appellant’s role is supported by

the scientific evidence showing the deceased’s “AB” group blood on the

scene samples, the deceased’s clothes, the accused-appellant’s clothes,

and the muddamal chopper recovered pursuant to the accused-appellant’s

disclosure, yet without proving intent to murder.

17.The prosecution case further states that the sole eyewitness is the

complainant Devendrakumar Shankarlal Oswal (PW-1, Ex. 8), but that on

overall consideration his testimony is not wholly true, reliable, or fully

credible on all material particulars, though it cannot be rejected entirely,

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and therefore it requires corroboration by independent evidence as per

settled law. It is stated that the accused-appellant is implicated and the

use of the muddamal weapon is supported by the scientific and medical

evidence, and therefore the complainant’s testimony can be accepted only

to the extent it is corroborated.

18.The complainant stated that he lives at Ramol and runs a scrap

shop at Nirant Park Society, C.T.M., that the shop was taken on rent from

Mansingh Tilakdhari Thakur on deposit of Rs. 1,15,000/- and monthly

rent of Rs. 3,000/-, and that there were earlier disputes, threats, and

complaints connected with the shop. It is stated that on scrutiny of this

part of the complainant’s testimony, there is no specific role attributed to

the present accused-appellant, and that regarding other accused, there is

no evidence proving the alleged threats beyond reasonable doubt,

including lack of corroboration by the cart-puller and lack of supporting

complaint leading to arrest, and that civil litigation and cross-complaints

show enmity over shop possession but do not by themselves prove

criminal conspiracy with the present accused.

19.As regards the incident, the complainant stated that at about 13:30

Majidkhan Pathan came with scrap worth Rs. 30/-, that the complainant

went to Jayeshbhai’s shop for change, and that at that time Sunil Kaliya

and 2 associates came on a black Pulsar motorcycle, assaulted Majidkhan

with a sharp chopper, beat him, took his cart, and fled. He stated that he

called on 100, police came quickly, he went to L.G. Hospital, the doctor

declared Majidkhan dead, and thereafter he lodged the complaint at Ex. 9

and showed the scene to the police. The prosecution states that the fact

that the deceased had gone to sell scrap is supported by the deceased’s

wife Rehanabanu Majidkhan Pathan (PW-2, Ex. 12), who stated that the

deceased left with plastic scrap around 11-12 noon, that around 14:00

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they received news of assault, and that he was taken to L.G. Hospital and

declared brought dead, and she admitted in cross-examination that up to

the point of going from the scene to the hospital and back home she did

not know how the incident happened.

20.Based on this, the defence argues that if the complainant truly

witnessed the incident and went to the hospital where the deceased’s wife

and relatives also came, he would naturally have disclosed who assaulted

the deceased and what happened. Since the deceased’s wife admitted that

she had no knowledge of how the incident occurred up to that point, the

defence claims this indicates there was no such disclosure, and therefore,

considering prior enmity, the complainant may have fabricated facts and

deposed falsehoods. It is stated that this defence argument cannot be

brushed aside, because the absence of any natural disclosure at the

hospital gives grounds to doubt whether the complaint version is wholly

true, and it is suggested that even if the present accused injured the

deceased in a scuffle using a sharp weapon, the complainant may have

added false details to implicate co-accused, making his testimony

unreliable except to the extent supported by other evidence.

21.It is therefore stated that the complainant’s evidence should be

accepted only to the limited extent that the present accused-appellant

Sunil @ Kaliya Bharatbhai Gupta inflicted grievous injuries on the

deceased on the upper left arm and inner thigh with a muddamal chopper-

like weapon, causing corresponding cut marks on the deceased’s shirt

sleeve and pant, and that the deceased’s blood was found on the

muddamal chopper and on the clothes worn by the accused-appellant, and

these articles were recovered from Vasantaben’s house pursuant to the

disclosure panchnama supported by Vasantaben’s testimony. Beyond this

limited extent, it is stated that the remaining facts in the complaint and

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testimony are not supported by corroborative evidence and are not

acceptable even beyond reasonable doubt. It is also stated that, as per the

certified copy, the complainant avoided answering certain unfavourable

questions, and therefore it is argued that he answers only favourable

questions and evades unfavourable ones, which further creates doubt

about his reliability.

22.We have carefully examined how the learned Sessions Judge

evaluated the evidence. While doing so, the Judge divided the evidence

into two parts one relating to the complainant’s direct testimony and the

other relating to the remaining evidence. Such a method, even when

considered in light of the principle falsus in uno, falsus in omnibus, does

not weaken the conviction. On an independent reading of the

complainant’s testimony, along with the well-reasoned findings of the

trial court, it is evident that the inconsistencies pointed out relate only to

minor and peripheral details. These do not amount to material

contradictions and do not affect the basic version of the assault or the

manner in which the incident occurred. The learned Sessions Judge

correctly separated the reliable part of the testimony, for which sound

reasons are recorded and supported by the evidence on record, from the

portions that were found to be unreliable or exaggerated. It is well settled

that if a witness is not fully trustworthy, the court is not required to reject

the entire testimony. The court may accept the truthful and reliable part

and discard the rest. In the present case, this exercise has been carried out

properly, without any arbitrariness or legal error, and the appreciation of

evidence does not suffer from any defect that would weaken the

prosecution case. At this stage, it is appropriate to refer to the principles

laid down by the Supreme Court in the following decisions.

23.In Saheb, S/o Maroti Bhumre Etc. v. State of Maharashtra

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[Criminal Appeal Nos. 313 of 2012 and 314 of 2012] reported in 2024 (0)

AIJEL-SC 74038, the Hon’ble Supreme Court, held that maxim falsus in

uno, falsus in omnibus is only a rule of caution and has not assumed

status of a rule of law in Indian context, an attempt must be made to

separate truth from falsehood and where such separation is impossible,

there cannot be a conviction. The Hon’ble Supreme Court while

evaluating the credibility of the sole eyewitness (the widow of the

deceased) in a case involving offences under Sections 148, 149 and 302

of the Indian Penal Code, 1860, held that although the maxim falsus in

uno, falsus in omnibus is only a rule of caution and not a rule of law in

the Indian context, a sincere effort must be made to separate truth from

falsehood. However, where such separation is rendered impossible owing

to pervasive inconsistencies such as contradictory statements regarding

the sequence of assault, absence of adequate moonlight for clear

identification, embellishments in court deposition vis-à-vis the initial

complaint, and inexplicable omission to attribute any role to certain

accused despite their alleged prominent entry the entirety of the testimony

falls into the realm of uncertainty. In such circumstances, no conviction

can be sustained on the solitary testimony, and the accused are entitled to

the benefit of doubt, resulting in their acquittal notwithstanding prior

incarceration.

24.In Rama Devi v. State of Bihar and Others [Criminal Appeal Nos.

2623 of 2014, 2631 of 2014, 2632 of 2014 and 2640 of 2014] reported in

2024 (0) AIJEL-SC 74101, the Supreme Court, interpreting Section 3 of

the Indian Evidence Act, 1872, reiterated that the maxim falsus in uno,

falsus in omnibus does not occupy the status of a rule of law and is

merely a rule of caution which guides the court in weighing evidence in

the given circumstances. Where a witness is found to have given

unreliable evidence in part, it becomes the duty of the court to diligently

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scrutinise the remaining evidence, sifting the grain from the chaff.

Reliable portions may still be acted upon, particularly when the

substratum of the prosecution case remains intact. The entire body of

evidence should be discarded only in exceptional cases where truth and

falsehood are so inextricably intertwined as to be indistinguishable. This

approach ensures that partial infirmities do not automatically vitiate the

prosecution case unless the core is irreparably damaged.

25.As an alternative argument, the learned Senior Advocate for the

appellant-accused submitted that even if the prosecution case is accepted

as true and the evidence of the main eyewitnesses, who claims to have

seen the incident, is taken at face value, a close examination of his

testimony shows important contradictions about how the offence actually

occurred. Although the learned Sessions Judge noticed these

contradictions, they were completely ignored, and reliance was placed

only on those parts of the testimony that supported the prosecution, while

the remaining parts were disregarded. It was further argued that the

accused had no intention to cause harm to the deceased, who was

admittedly a stranger to him, and that the prosecution has neither proved

nor even alleged any motive. Therefore, even assuming that the incident

occurred as claimed, and considering only the nature and manner of the

injuries, the act attributed to the appellant does not satisfy the legal

requirements of the offence of murder under Section 302 of the IPC.

26.It is settled position of law that, while determining the issue of

culpable homicide or murder, the courts have to keep in focus the key

words used in Sections 299 and 300 of the IPC. The difference between

murder and culpable homicide has been succinctly explained in the case

of State of A.P. vs. Rayavarapu Punnayya (1976) 4 SCC 382. The

Hon’ble Supreme Court has held that in the scheme of the IPC, culpable

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homicide is the genus and murder its species; all murders are culpable

homicides, but not vice versa. The IPC recognizes three degrees of

culpable homicide for proportionate punishment: the gravest form

(murder under Section 300, punishable under Section 302 IPC), culpable

homicide of the second degree (punishable under the first part of Section

304 IPC), and the lowest type (punishable under Section 304 Part II IPC).

Section 300 specifies when culpable homicide amounts to murder and

when, under the exceptions, it is culpable homicide not amounting to

murder under Section 304 IPC.

27.After referring to the aforesaid decision, the difference between the

two terms was further elucidated in Rampal vs. State of U.P. (2012) 8

SCC 289. The Hon’ble Supreme Court has observed that the safest

approach to interpreting and applying Sections 299 and 300 IPC is to

focus on the key words in their clauses, and that courts should consider

the issue in three stages: first, whether the accused's act caused the death;

second, whether it amounts to culpable homicide under Section 299; and

third, if it does, whether it falls under any Exception to Section 300,

making it culpable homicide not amounting to murder punishable under

Section 304 IPC (or under Part II if intention is absent but knowledge is

present). The Court further clarified that Section 304 divides the offence

into cases of intentional causing of death (Part I) and unintentional but

knowing causing of death (Part II), with the latter attracting optional

imprisonment up to 10 years.

28.Recently, in the case of Chunni Bai Vs. State of Chhattisgarh

(AIR 2025 Supreme Court 2370), the Supreme Court, after referring to

the observations in Rayavarapu Punnayya and Rampal (supra), has held

that one of the key criteria to determine whether the act amounts to

murder or culpable homicide not amounting to murder is the presence or

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absence of intention of the offender. If intention to cause death or such

bodily injury as is likely to cause death, or clear knowledge that the act is

imminently dangerous and likely to cause death (without excuse), is

established, it falls under Section 300 IPC attracting Section 302. On the

other hand, if the intention is not so clear, the case falls under the less

stringent category of culpable homicide not amounting to murder

punishable under Section 304 IPC.

29.Having regard to the peculiar facts and circumstances of the

present case and on appreciation of the evidence on record (including oral

evidence of PW-1 to PW-17 and documentary evidence Exhs. 9 to 51),

none of the clauses of Section 300 IPC are attracted. Accordingly, we set

aside the conviction of the appellant under Section 302 IPC and the

sentence of life imprisonment, and instead convict the appellant under

Section 304 Part II IPC In these circumstances, the ends of justice would

be met by sentencing the accused to the sentence already undergone i.e.

around 7 years (6 years and 10 months as per the jail remarks on record).

30.As discussed, though the maxim falsus in uno, falsus in omnibus is

a rule of caution and not a rule of law in India, the Court must separate

truth from falsehood. Here, the sole eyewitness (complainant PW-1, Exh.

8) is not wholly reliable, showing material contradictions and

improvements regarding the role of co-accused, sequence of events, and

details not initially disclosed (including lack of natural disclosure to the

deceased's wife at the hospital). These, coupled with prior enmity, raise

doubts about aspects like premeditation or multiple assailants. Where

truth and falsehood are interwoven on crucial issues, conviction for

murder under Section 302 IPC cannot be based solely on such testimony.

31.However, the core prosecution case – that the accused-appellant

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inflicted grievous injuries with the muddamal weapon – is corroborated

by scientific evidence (Serological report Exh. 47, Physics report Exh.

48), recovery panchnamas (Exh. 19), post-mortem (Exh. 27), and medical

evidence indicating grievous but non-vital injuries with possibility of

survival if treated timely. This sustains culpability with knowledge,

entitling the benefit of doubt on intent for murder, altering the conviction

to Section 304 Part II IPC.

32.The maxim falsus in uno, falsus in omnibus is merely a rule of

caution. Where a witness (PW-1) is 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 – grievous

injury by sharp weapon, corroborated by FSL/reports, medical evidence,

and recovery – sustains conviction without proving intent (non-vital parts,

no repeated blows). Thus, Section 302 IPC conviction is converted to

Section 304 Part II IPC.

33.For the reasons aforementioned, Criminal Appeal No. 804 of 2012

filed by the appellant Sunil @ Kaliya Bharatbhai Gupta is partly allowed.

He is convicted under Section 304 Part II IPC and sentenced to the

rigorous imprisonment (already undergone) i.e. around 7 years (6 years

and 10 months as per the jail remarks on record). The conviction under

Section 302 IPC is set aside, and the appellant is convicted and sentenced

as above.

34.Regarding appeals by the original complainant (PW-1), no ground

exists to interfere with the learned Sessions Court's acquittal of original

accused nos. 2 and 3. The role of accused no. 2 (pipe injury on

complainant's leg) was not mentioned in the complaint, no visible injury

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on complainant, and over-implication suspected for accused no. 3

(absence of expected blood stains). The acquittal view is plausible and

based on record; no exceptional grounds to interfere.

35.In result, Criminal Appeal Nos. 1182 and 1183 of 2011, preferred

by the original complainant are dismissed. Criminal Appeal No. 804 of

2012 preferred by the appellant-accused is partly allowed in above terms.

Bail bonds shall stand canceled and the sureties discharged. The records

be transmitted to the learned Sessions Court forthwith.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

MVP

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