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GUJARAT HIGH COURT
Ilesh J. Vora and R.T. Vachhani, JJ.
Asim @ Munmun @ Asif Abdulkarim Solanki – Appellant
versus
State of Gujarat – Respondent
R/Criminal Appeal (Against Conviction) No.249/2019 with
R/Criminal Appeal No.417/2019
Decided on 22.4.2026
Counsel for the Parties:
For the Appellant in Criminal Appeal No.249 of 2019:Mr Parth S Tolia, Advocate
For the Appellant in Criminal Appeal No. 417 of 2019:Mr Vaibhav A Vyas, Advocate
For the Respondents in Both Appeals: Mr Bhargav Panyda, APP
IMPORTANT POINTS
(1) Alibi – Plea of alibi is to be considered only after prosecution has satisfactorily discharged its burden – Proved Plea of alibi can lead to acquittal of accused.
(2) Appreciation of evidence – Maxim falsus in uno, falsus in omnibus is merely a rule of caution.
(3) Administration of Justice – Accused cannot be compelled to speak, and any benefit of doubt must necessarily enure to his advantage.
Headnote:
(A) Indian Penal Code, 1860 – Sections 302/34 – Arms Act, 1959 – Section 25(1)(B)(a) – Murder – Common intention – Life imprisonment – Prosecution has examined in all 34 witnesses, whereas accused persons did not examine any witness in their defence – Ocular evidence is duly corroborated by medical evidence showing firearm injuries – Medical evidence is further strongly corroborated by scientific evidence in form of FSL Reports – Scene of offence Panchnama, recovery Panchnama of farsi, and forwarding letters have all been proved by prosecution – No recovery of alleged looted articles has been made from either of accused – Conviction under Section 397 IPC is not sustainable and deserves to be set aside – Prosecution has been able to prove guilt of Accused No.2 beyond reasonable doubt for offence of murder with common intention – Accused No.1 is entitled to acquittal on the ground of proved plea of alibi. (Paras 13, 23.1, 23.4, 23.5,
23.9, 31, 32 and 32.1)
(B) Indian Evidence Act, 1872 – Section 11 – Alibi – Plea of alibi is to be considered only after prosecution has satisfactorily discharged its burden – When a plea of alibi is raised, heavy burden is cast upon person asserting it to establish the same by leading cogent and satisfactory evidence, or by referring to material on record, including investigation papers, so as to completely exclude possibility of presence of accused at place of occurrence – Standard of “strict scrutiny” is required when such a plea is raised. (Paras 22.2 and 22.3)
(C) Criminal Law – Administration of Justice – Judge is expected to play active role in trial by eliciting relevant facts from witnesses in appropriate contexts, wherever necessary for reaching a correct conclusion – Court possesses ample authority to intervene where it perceives errors, omissions, mischief, or delaying tactics, and must address such issues in accordance with law – Burden lies solely upon prosecution to prove its case against accused beyond reasonable doubt – Accused cannot be compelled to speak, and any benefit of doubt must necessarily enure to his advantage – Crime against an individual is, in essence, a crime against society – Investigating Officer, Public Prosecutor/ Special Public Prosecutor, and Presiding Officer of Court are all under duty to discharge their respective functions with utmost diligence so as to arrive at just and fair conclusion – Trial must proceed impartially, affording reasonable opportunity to all concerned to present their case. (Paras 27, 27.4 and 27.5)
(D) Criminal Law – Appreciation of evidence – Maxim falsus in uno, falsus in omnibus is merely a rule of caution – Where witnesses are found unreliable on certain aspects, such as exaggeration regarding involvement of other accused, Court is duty bound to carefully scrutinize remaining evidence and may rely upon those portions which are found to be credible and duly corroborated – While applying principle of falsus in uno, falsus in omnibus, Court is required to separate truthful part of evidence from falsehood. (Paras 29 and 29.1)
Result: Appeals partly allowed.
JUDGMENT (ORAL)
R.T. Vachhani, J.— The present case arises from Sessions Case No. 105/2013, decided by the learned Additional Sessions Judge, Botad, whereby the appellant-accused Asim @ Munmun @ Asif Abdulkarimbhai Solanki and Jasminbhai Bharatbhai Kothari were convicted for the offence punishable under Section 302 read with Section 34 (alternatively Section 114) of the Indian Penal Code and Accused No.2 was also convicted under Section 25(1)(B)(a) of the Arms Act, 1959. The learned Additional Sessions Judge sentenced both the accused to undergo imprisonment for life and to pay a fine of Rs. 25,000/- each, in default to further undergo rigorous imprisonment for six months for the offence under Section 302 r/w 34 IPC. Accused No.2 – Jasminbhai Bharatbhai Kothari was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to further undergo simple imprisonment for six months for the offence under the Arms Act. Both the substantive sentences imposed upon Accused No.2 were ordered to run concurrently.
Brief case of Prosecution:-
2. The case of the prosecution, in brief, is that on 04/03/2013 at around 6:45 p.m., at Prince Hair Art salon situated in Shubham Complex on the Paliyad Road, Botad, the deceased Kamleshbhai Laghrabhai Bodiya was sitting on a chair. Due to previous enmity arising out of a quarrel involving Bimal Shukla and a land transaction dispute regarding Survey No.1013, the accused persons, with common intention, committed his murder. Accused No.2 – Jasminbhai Bharatbhai Kothari fired upon the deceased with a revolver, while Accused No.1 – Asim @ Munmun @ Asif Abdulkarimbhai Solanki assaulted the deceased with a farsi (axelike weapon) on his face and head, causing fatal injuries. The accused persons robbed the licensed revolver and Apple mobile phone worth approximately Rs. 30,000/- belonging to the deceased. They also threatened the complainant Khodabhai Raghubhai Jogarana with death. The accused carried deadly weapons in violation of the District Magistrate’s arms prohibition order. The complainant, who was present near the scene of offence, witnessed the occurrence and took the injured to Sonawala Hospital in a CNG rickshaw, where he was declared dead.
2.1 It is the case of the prosecution that the accused persons, in furtherance of their common intention and with the knowledge that their acts were likely to cause death, intentionally caused the death of Kamleshbhai Bodiya, thereby committing offences punishable under Sections 302, 397, 506(2), 34/114 of the Indian Penal Code, Section 135 of the Gujarat Police Act and Section 25(1)(B)(a) of the Arms Act.
3. Upon registration of the FIR at Botad Police Station being C.R. No.35/2013 under the aforesaid sections, the investigation was carried out by the concerned police officer. The scene of offence was visited, panchnamas were prepared in presence of panch witnesses, inquest panchnama was drawn, postmortem was conducted at Bhavnagar, statements of material witnesses were recorded, identification parades of the accused were held, weapons and other muddamal articles were recovered and seized, and articles were sent to F.S.L. for examination. After receipt of the F.S.L. reports and other evidence, charge-sheet was filed before the learned Judicial Magistrate First Class, Botad. The case was committed to the Court of Sessions, Bhavnagar under Section 209 Cr.P.C. and registered as Sessions Case No.105/2013, which was later transferred to the Additional Sessions Court, Botad.
4. The learned Additional Sessions Judge, Botad, after accused persons pleaded not guilty and claimed to be tried, framed charges against the accused under Sections 302, 397, 506(2), 34/114 of the Indian Penal Code, Section 135 of the Gujarat Police Act and Section 25(1)(B)(a) of the Arms Act and proceeded with the trial. In order to establish the charges levelled against the accused, the prosecution examined in all 34 witnesses and relied upon 56
