ORDER :

A.Y. KOGJE, J.

1. Present Appeal is preferred by the original complainant under Section-372 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 19-01-2023 passed by Sessions Judge, Modasa, Arvalli, in Sessions Case No.3 of 2020. By the aforesaid judgment and order, the respondent Nos.1 and 2 (original accused) have been acquitted for the offences under Section-302 and 114 of the Indian Penal Code.

2. The complaint came to be registered by the appellant, when the uncle and aunt of the appellant on 08-10-2019 saw the dead body of the deceased-Bipin (brother of the complainant) in hanging position on the door of the old house of the complainant. Upon immediate inquiry, younger brother; Vipul informed the complainant that the deceased-Bipin and Vipul on 07-10-2019 were at another Village-Andhariya for celebrating ‘Navratri’ festival and about 3.30 am, the deceased-Bipin had returned back to their Village-Padra, while Vipul continued to stay at Village-Andhariya. However, at around 4.00 am, allegedly Vipul received mobile phone call from the accused no.1 informing Vipul that Bipin had come to the house of the accused no.1 to meet his niece and his mobile is found here, so Vipul and Bipin should come and collect the mobile.

3. On account of the aforesaid on the basis of suspicion that on account of relationship between Bipin and niece of the accused no.1, the offence was committed for which F.I.R. came to be registered as C.R. No.I-83 of 2019 with with Bhiloda Police Station against three accused persons.

4. It appears that the charge was framed vide Exh-5 against three accused persons of whom, accused No.3; Martaji Ditaji Bodar had expired and therefore, the trial qua him had abated, whereas by the impugned judgment and order, two respondents-accused were acquitted on account of lack of evidence to establish the charge.

5. The main contention of learned advocate for the appellant is that an error is committed in acquitting the respondents-accused, despite the deposition of the complainant / appellant; Hiteshbhai Rameshbhai Ninama vide Exh-24, who has deposed about the deceased-Bipin having an affair with the niece of the accused and therefore, the accused had motive to commit the murder.

6. It is submitted that an error is committed in not taking into consideration the evidence of another brother of the deceased and the complainant at Exh-45, who has deposed that at odd hours in the night, the mobile phone call was received by him from the accused no.1 informing him that brother of this witness had come there and his mobile phone is left with the accused. It is further submitted that discovery panchnama exhibited through panch witness vide Exh-43 would indicate that the discovery at the behest of the accused no.1- Thavraji Martaji Bodar lead to discovery of the mobile phone of the deceased and therefore, though the panch was declared hostile, at-least the portion of his evidence, which supported the case of the prosecution, ought to have been considered by the trial Court.

7. Learned Advocate for the appellant has submitted that an error is also committed by the trial Court, when the trial Court did not take into consideration the Call detail record, which corroborated version of witness; Vipul regarding the call having been received by him from accused no.1- Thavraji Martaji Bodar informing him about the mobile phone of the deceased being at his place.

8. Learned Advocate has therefore, submitted that considering the circumstances which includes the motive, evidence to the effect of deceased having gone to the place of accused and the accused informing the witness about this and lastly, found the body of the deceased at his old resident completes chain of events to draw the conclusion that the murder was committed by the respondents-accused.

9. Learned Advocate has placed set of complete Paper-book, which consisted of depositions of 27 witnesses, Postmortem Report, panchnama execut