R. P. DHOLAKIA, J.

( 1 ) CRIMINAL Appeal No. 831 of 1997 under Sec. 374 of the Code of Criminal Procedure (`the Code for short) has been filed by the appellant-original accused No. 1-Kishore Suryakant Thakker, (hereinafter referred to as "the accused No. 1" for short) who has been convicted to suffer R. I. for life and to pay a fine of Rs. 5,000/-, in default, to suffer R. I. for 3 months for the offence punishable under Sec. 302 of IPC and also to suffer R. I. for 2 years and to pay a fine of Rs. 5,000/-, in default, to suffer R. I. for 3 months for the offence punishable under Sec. 201 of IPC vide judgment and order dated 8th July, 1997 passed by the learned Addl. City Sessions Judge, Court No. 11, Ahmedabad, in Sessions Case No. 143 of 1995.

( 2 ) CRIMINAL Appeal No. 833 of 1997 under Sec. 374 of the Code has been filed by the appellant-original accused No. 2-Padmini Mahendrabhai Gadda (hereinafter referred to as "the accused No. 2" for short), who has been acquitted for the offence under Sec. 302 of IPC and has been convicted under Sec. 301 of IPC to suffer R. I. for 2 years and to pay a fine of Rs. 5,000/-, in default, to suffer R. I. for 3 months vide judgment and order dated 8th July, 1997 passed by the learned Addl. City Sessions Judge, Court No. 11, Ahmedabad, in Sessions Case No. 143 of 1995.

( 3 ) THE case of the prosecution in short is that a complaint was filed by the complainant-Pradip Ratilal Kamdar on 12-12-1994 before P. I. of Navrangpura Police Station alleging that his sister Padmini and one Mahendrabhai had a love marriage in 1981 and which was accepted by his family members. Initially they resided in the house of complainant. However, they started to reside in Shakuntal Apartment, Near C. N. Vidyalay, Ambawadi, with their two daughters, Ami and Puja aged about 8 and 4 years respectively, studying in Vandana School where Mahendrabhai had started a health club namely, P. M. Health Club before 4-5 years in addition to the one situated near St. Xavier School, near Chitranjan Society, Naranpura. A person named Kishore Thakkar residing in Naranpura area was employed in said P. M. Health Club prior to 10 months. Before last Diwali, Padmini told wife of the complainant to get separated from Mahendrabhai as she did not like to stay with him. However, when wife of the complainant told her not to do so as she had a love marriage and had two children out of it and also as their P. M. Health Club was nicely running, Padmini told that one Kishore working in the said Health Club was keeping her children nicely. Thereafter, complainant and his wife met Mahendrabhai and inquired about Kishore. Mahendrabhai told that Kishore was being treated as a family member. They told him not to give such facility to an outsider and he agreed to the same. Thereafter, when Mahendrabhai and Padmini came to the house of complainant, Padmini admitted about her illicit relation with Kishore. Kishore was therefore removed from service. During last Diwali, Padmini and Mahendrabhai along with their children went to Mahabaleshwar. On their coming back, as it was told by Mahendrabhai to the complainant about the contact being still continued by Padmini with Kishore, the complainant and his wife told Padmini to leave everything. On previous day at 12 noon, Padmini and Mahendrabai with their children came to the house of complainant for lunch and returned at about 2. 30 p. m. Then Mahendrabhai had a talk over phone with wife of the complainant at about 5. 30 p. m. and next with the complainant at about 8. 30 to 9. 00 p. m. as a regular talk. When wife of the complainant tried to inquire about the health of younger daughter of Padmini, phone was found engaged and when she got the connection at 10. 30 a. m. , wife of the complainant asked Padmini about Mahendrabhai. At that time, Padmini informed that he had gone to Naranpura Health Club. On being asked about the telephone getting engaged, she told that it was because of the telephone wire having com

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