(Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. Present appeals arise out of the judgment and order rendered by learned Additional Sessions Judge, Fast Track Court No. 2, Patan in Sessions Case No. 67 of 2008 on 21-8-2009 whereby the appellants are convicted for the offence punishable u/s 302 read with Section 34 and 120-B, Section 404 read with Sections 34 and 120-B and for the offence punishable u/s 302 read with sections 34 and 120-B of the I.P. Code and they are sentenced to undergo life imprisonment with fine of Rs.1000/- each, in default, to undergo further simple imprisonment for five months and for the offence punishable u/s 304 read with Section 34 and 120-B of the I.P. Code they are sentenced to undergo rigorous imprisonment for one year with fine of Rs.250/-, in default, to undergo further simple imprisonment for 10 days. Sentences are ordered to run concurrently and hence this appeal.
2. As per the prosecution case, accused No. 1 and accused No. 2 were in love. Accused No. 2 was formerly in love with one Badsangji Sursangji Thakor. This love triangle resulted into obstruction of Badsangji in love affairs between accused No. 1 and accused No.2. It is the case of the prosecution that accused No. 1 and accused No. 2 hatched a conspiracy with accused No. 3 who is the brother of accused No. 2 and after calling Badsangji to Patan Bus Stand, committed his murder by strangulation. Thereafter stole one golden pendant which the deceased was wearing. Initially, an occurrence report was registered in respect of accidental death and thereafter the investigating agency interrogated accused No. 2 and accused No. 1. On the basis of revelation made by them further investigation was made and accused No. 3 was interrogated and was arrested. It is the case of the prosecution that the accused persons discovered SIM - cards, one golden pendulum from a room in the field. Accused No.2 also discovered sari' from his own house allegedly used for the purpose of strangulating the deceased. Ultimately, charge sheet came to be filed in the court of the learned Chief Judicial Magistrate, Patan, who in turn committed the case to the Court of Sessions and in turn Sessions Case No. 67 of 2008 came to be registered.
3 Charge was framed against the accused persons at Exh. 13 to which they pleaded not guilty and claimed to be tried.
4. After considering the evidence, the trial court recorded conviction and passed sentenced as stated hereinabove.
5. The appeals came to be admitted by co-ordinated orders passed by this Court dated 15-9-2009 and 22-2-2010 in Criminal Appeal No. 1652 of 2009 and Criminal Appeal No. 2546 of 2009 respectively.
6. Later, Criminal Misc. Application No. 14340 of 2009 for suspension of sentence during pendency of the appeal came to be allowed, wherein this Court made following observations :
In view of the observations made in the judgment in paragraph No. 35, we are of the view that the matter needs to be heard out of turn. Learned advocates for the appellants have volunteered to supply complete, correct and legible paper-book, which they shall do on or before 27th April, 2010. Let the appeals be listed for final hearing on 4th May, 2010.
7. As volunteered the learned advocates for the appellants on their part supplied the paper-book. The matters are, therefore, taken up today for final hearing out of turn.
8. Paragraph No. 35 of the judgment of the trial Court which prompted us to take up these matters out of turn is very relevant for the purpose of deciding these appeals, and therefore, we quote that paragraph, as under :
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9. The substance of the above observation can be stated, thus :
As observed earlier, the object of the accused persons was to commit murder of deceased Badsangji as he was an obstruction in the path of love between accused No.1 and accused No. 2 and because the deceased himself was in love with accused No. 2, he did not like love affairs of accused No.1 and accused No. 2, and therefore, to defy him, accused No. 1 and accused No.2 committed his murder with the help of accused No. 3. The love affair between accused No. 1 and accused No. 2 was the motive for the offence as it happens now a days love triangle. As discussed earlier, there is no evidence to the effect that the accused persons were seen together with the deceased or that they were seen committing murder of the deceased. No material is found at the place of the incident to connect the accused persons with the crime. But the doubt becomes stronger and on the basis of print out of mobile phones revealing telephonic talk between accused No. 1 and accused No. 2, particularly, the print out reveals that accused No. 1 and accused No. 2 had talked till late night on the eventful day, and therefore, it can be presumed that they were talking only about the incident. The deceased was supposed to go to Dhanwada village but he stayed upto 8-30 p.m. at Patan and during that time there was talk between accused No.1 and accused No. 2. It is also a circumstance that accused No.2 had called the deceased at Patan and during that time there was telephonic talk between accused No.1 and accused No. 2.It, therefore, can be presumed that accused No. 1 and accused No. 2 had hatched conspiracy to fulfil their common object of committing murder of the deceased.
10. Medical Certificate Exh. 26 reveals some injury on the person of accused No.1 and accused No. 2. These injuries can be presumed to have been caused in scuffle with the deceased as they were caused in proximity of time of the incident and the defence has not been able to explain injuries on the person of the accused. The discovery is made from the place where any person can have access but what is discovered is 'om' pendant and SIM-card of mobile phone which could be even planted by police. But because it is discovered in a natural way, it can be presumed that the accused persons have committed the offence. The fact that the accused persons switched off their mobile phones would strengthen the suspicion that the accused persons have committed the crime. Sari was sent to F.S.L., but no evidence is found. No blood stains were found on sari' nor any hair is found on the 'sari'.....
11. Thus, it is clear that even according to the learned trial Judge there was no evidence to connect the accused persons with the crime. But a presumption can be drawn about involvement of the accused persons in the crime only on the basis of discovery of SIM cards, pendant and 'sari'. Although there is no material on record to show even the presence of the accused persons in the vicinity of the place of the incident in proximity of time, yet we have to examine the records and proceedings and we find that the trial court was right in observing that there is no evidence to connect the accused persons with the crime.
12. The finding that accused No. 2 called the deceased at Patan and then committed his murder is not supported by any cogent evidence. The entire investigation and the prosecution is based on what could have been revealed by the accused persons when they came to be interrogated while they were in the custody. Indisputably, accused No. 1 and accused No. 2 were alleged to be in love and if they talked to each other in odd hours for a long time, no inference or presumption can be drawn that it was in connection with the offence because the offence took place in proximity of time before such talk.
13. The discovery of pendant and SIM card is not in any manner supporting the prosecution case against the accused. All that the discovery revealed is that the pendant and the SIM cards were discovered by accused Nos.1, 2 and 3 and that they knew about those articles lying at the respective places. So far as the pendant is concerned, it is nobody's case that it was used for commission of murder. SIM-cards indicate that they belong to those telephone numbers belonging to the accused persons and the victim and there was frequent lengthy talk inter-se. So far as 'sari' is concerned, discovery was made from accused No.1's own house. The opinion of the F.S.L. is neutral. It is not sure whether 'sari' could have been used for strangulating the deceased.
14. The learned trial Judge has, therefore, proceeded in absence of any legally acceptable evidence to connect the appellants with the offence, only on presumption and assumptions and he spells out in Paragraph No. 35 of his judgment. The convictions, therefore, cannot be upheld. The appeal, therefore, deserves to be allowed and the judgment and order of conviction of the appellants requires to be set aside.
15. In the result both these appeals are allowed and judgment and order of conviction and sentence rendered on 21-8-2009 by learned Addl. Sessions Judge, Fast Track Court No.2, Patan in Sessions Case No. 67 of 2008 is hereby set aside. The appellants Thakor Jalbaben wife of Virsangji Ramaji and Thakor Tejmalji Sendhaji of Criminal Appeal No.1652 of 2009 and appellant Thakor Baldevji Harchandji of Criminal Appeal No. 2546 of 2009 are acquitted of charges levelled against them and are ordered to set free forthwith, if are not required in any other case. Fine, if paid, shall be refunded to them. Muddamal be disposed of as directed by the trial court.
(A.L.
Dave, J.) (Bankim N. Mehta, J.) /JVSatwaa/ Top