Point of law: Even the prosecution has failed to discover the poisonous liquid allegedly used by the appellants in commission of crime for throttling the deceased. It is true that the tower location with regard to mobile phones of the appellants is in the area of Ankleshwar, but only relying upon such evidence, the accused cannot be held guilty in absence of any complete chain of circumstances which led to the conclusion by the learned Trial Court that the appellants were the only persons who have committed the offence.

JUDGMENT :

A. J. DESAI, J.

1. By way of the present appeal preferred under Section 374 of the Code of Criminal Procedure, 1973, the appellants – two lady convicts (who happen to be sister-in-law of deceased) have challenged the judgment and order of conviction dated 26.9.2016 rendered by learned 3rd Additional Sessions Judge, Surat in Sessions Case No.44 of 2008 by which the appellants have been convicted for the offence punishable under Sections 302 and 120 (B) of Indian Penal Code and ordered to undergo rigorous imprisonment for life with fine of Rs.10,000/- each and in default of payment of fine, further simple imprisonment for a period of one year. The appellants also came to be convicted for the offence punishable under Sections 365 and 201 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of seven years with fine of Rs.2,000/- each and in default of payment of fine, further simple imprisonment for a period of one month. The appellants also came to be convicted for the offence punishable under Section 506 (2) of the Indian Penal Code and ordered to undergo simple imprisonment for a period of one year and fine of Rs.2,000/- each and in default of payment of fine, further simple imprisonment for a period of one month. All the sentences were ordered to run concurrently.

2. The appeal came to be admitted by order dated 18.1.2017. The Records and Proceedings had reached to this Court along with the paper-book prepared by the learned Trial Court. Since the appellant Nos.1 and 2 came to be arrested in the month of November 2007 and January 2008 respectively and have undergone more than eleven years of imprisonment, the appeal has been taken up for final hearing when an application for suspension of sentence came to be filed.

3. The short facts arise from the record are as under :-

3.1 That one Kamabhai Amratbhai Parmar, Unarmed Head Constable, Buckle No.605 serving in Kamrej Police Station declared before Senior Police-Sub Inspector of Kamrej Police Station that on 12.10.2007, when he was in petrolling in Navratri festival, at about 22.00 hours in Kathor town, he received a phone call on his mobile that a dead body in a burnt condition is lying on a road from Kathor – Abrama in the sim of village Kathor. He immediately reached at the place where he found a dead body of unknown lady in a burnt condition who was prima facie of 20 to 25 years.

3.2 Such information (Exh.62) was recorded in writing by the Senior Police Sub-Inspector. Mr. P.D. Vaghela, Senior Sub- Inspector of Kamrej Police Station at District Surat lodged an FIR on 14.10.2007 which was registered as C.R. No.I-192 of 2007 for the offences punishable under Sections 302 and 201 of Indian Penal Code wherein it was declared that having received the cause of death from Medical Officer after performing Post-Mortem, as per the P.M. Note, the deceased was first strangulated and then put ablaze. The said aspect was declared in the FIR.

3.3 One Vinesh Jashwantlal Kapadia (P.W.4 – Exh.73) had made a janvajog entry (Exh.74) with Mahidharpur Police Station of Surat city about missing of his sister, namely, Amiben wife of deceased Praful Shah. Having come to know about finding a dead body of a lady aged about 20 to 25 years, he was called to identify the dead body and accordingly, he identified the dead body as of his deceased sister Amiben, wife of deceased Praful Shah.

3.4 After some investigation and information received by the Investigating Agency, the present appellants along with third accused, namely, Sanjay Chandubhai Ahir came to be arrested on different dates. On completion of investigation, charge-sheet came to be filed against all the accused persons before the Court of concerned Judicial Magistrate First Class, Surat.

3.5 On the basis of material recovered during the course of investigation, it was noticed by the learned Magistrate that the incident in question, for which, the offence is registered, is triable by the Court of Sessions in exercis