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JUDGMENT

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.735 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.9184 of 2008)

BABUBHAI BHIMABHAI BOKHIRIA

& ANR.

..... APPELLANTS

VERSUS

STATE OF GUJARAT & ORS. .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

Before we proceed to consider the case,

we must remind ourselves the maxim “judex

damnatur cum nocens absolvitur” which means

that a Judge is condemned when guilty person

escapes punishment. But, at the same time, we

cannot forget that credibility of the justice

delivery system comes under severe strain when

a person is put on trial only for acquittal.

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By Order dated 8^th December, 2011, Veja

Prabhat Bhutia was added as petitioner no. 2.

He was an accused in the case and his

grievance was that due to pendency of the

present petition filed by petitioner Babubhai

Bhimabhai Bokhiria, his trial has been stayed

and he is unnecessarily rotting in jail. This

judgment shall, therefore, will have no

bearing

on

him

and

the

expression

“petitioner/appellant” in this judgment would

mean petitioner no.1/appellant no.1 Babubhai

Bhimabhai Bokhiria.

Shorn of unnecessary details, facts

giving rise to the present petition are that

one Mulubhai Gigabhai Modhvadiya was murdered

on 16^th of November, 2005 and for that a case

was registered at Kalambaug Police Station,

Porbandar, under Section 302, 201, 34, 120B,

465, 468 and 471 of the Indian Penal Code and

Section 25 of the Arms Act. Police after

usual investigation submitted the charge-sheet

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and the case was ultimately committed for

trial to the Court of Session. When the trial

was so pending, the wife of the deceased filed

an application for further investigation under

Section 173(8) of the Code of Criminal

Procedure (hereinafter referred to as ‘the

Code’), alleging petitioner’s complicity in

the crime, inter alia, stating that the

petitioner was a business rival of the

deceased whereas one of the main accused is

his business partner with whom he conspired to

kill the deceased. It was alleged that

petitioner was a Minister earlier from the

party which was in power in the State and

therefore,

he

was

let

off

during

investigation. It was also pointed out that a

letter written almost a year ago by the

deceased was recovered from his purse in which

it was stated that in the event of his death,

the petitioner shall be held responsible as he

intended to kill him. In reply to the said

application, the Investigating Officer filed

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his affidavit stating therein that during the

course of investigation, nobody supported the

plea of the wife that the deceased was

apprehending any threat from the petitioner or

for that matter, any other person. In another

affidavit filed by the Investigating Officer,

a firm stand was taken that no material had

surfaced to show the complicity of the

petitioner in the offence. It was pointed out

by the Investigating Officer that the deceased

filed an application for arms licence and in

that application also he did not disclose any

threat or apprehension to his life from any

person, including the petitioner herein.

Notwithstanding the aforesaid affidavit of the

Investigating Officer, the Sessions Judge

directed for further investigation. In the

light of the aforesaid, the investigating

agency submitted further report stating

therein that the call records of the period

immediately preceding the death of the

deceased do not show any nexus between him and

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the petitioner and the deceased did not have

any threat from the petitioner. In this way,

the police did not find the complicity of the

petitioner in the crime.