TMI Blog1991 (12) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the evidence show that the deceased Tinu is the son of one Budhi Prasad (PW 35) and this child was born to him after the birth of six daughters. Budhi Prasad is a Kandoi by profession and runs a shop of sweets and Nimkins at Prantij, a town in Gujarat State. The deceased Tinu used to go to shop of his father, which was situated near the S.T. Bus Stand, in the town and be with the father playing in or around that area. On the day of occurrence, namely, 27th of August, 1977 the boy was as usual with his father and around 1.30 P.M. both father and the boy went to their house for noon meal and returned around 3.00 or 3.30 P.M. At the time the first accused who was known to the family and who used to play with the child was also seen sitting on a bench lying near the shop. Around 4.30 P.M. Budhi Prasad noticed that his son was missing. He immediately sent his servant to find out where the child had gone. On being told that he was not found even in his house he became suspicious and made a search for the child in the entire town. Not finding any clue regarding his whereabouts at about 7.00 P.M. he informed the Prantij Police that his son Tinu was missing. It was the further case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also was arrested. The first accused was kept in police custody until the 6th of September, 1977 when he was remanded to judicial custody. On the 8th of September, 1977 he was produced before the Judicial Magistrate (PW 40) on the ground that the first accused desired to make a confessional statement. On the 9th of September, 1977 the confessional statement given by the first accused was recorded. As many as 42 witnesses were examined for the prosecution and a number of documents produced. The learned Sessions Judge Sabarkantha District at Himatnagar acquitted both the accused. The State of Gujarat preferred an appeal to the High Court. A Division Bench of the High Court came to the conclusion that the prosecution has proved beyond all reasonable doubts that the accused had committed the murder and accordingly convicted them for offences punishable under Section 302 read with 34 and also 302 read with 120B, Indian Penal Code and sentenced them to life imprisonment. We may also mention that the High Court was also of the view that both the accused are guilty of committing the other offences mentioned in the charge but it was not necessary to award any separate sentences in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the guilt of the accused and convicted the appellants of murder and conspiracy and sentenced them to life imprisonment. 3. In these appeals Mr. T.U. Mehta, who appeared for the second accused and Mr. Y.C. Dhingra, who appeared for the first accused took us through the entire evidence for a reconsideration of the material evidence available so as to enable us to come to an independent conclusion on the question of guilt or otherwise of the accused. We have also given our serious and anxious consideration to the entire evidence. But we think it will suffice if we notice in this judgment only some of the important aspects of the evidence without going into the minute details about the entire prosecution case though we have the full power to review at large the entire evidence and to reach an independent conclusion of our own. We have however concentrated upon such evidence and such matters on winch the High Court differed from the Trial Court both on the credibility of the witnesses and the incriminating nature of facts and circumstances spoken to by those witnesses. 4. So far as the motive part is concerned, the evidence is not direct and it does not also lead to a conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what without the aid of the confession he would not be prepared to accept. 6. The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particulars by prosecution witnesses without first considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion. The Trial Court has given cogent reasons for not accepting the evidence of PWs 7, 8 and 11 and rightly so. The High Court has not given any convincing reasons as to why PWs 7, 8 and 11 who were discarded by the Trial Court should be relied on. The only evidence which call for comment is that of PW 6, Noorbibi, who is said to have seen the first accused with the child around 7 P.M. On this aspect the Trial Court pointed out that inspite of the fact that the missing of the child was widely talked about in the villag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court on the evidence available that on the 27th August, 1977 around 8.30 P.M. both the accused were seen together, that both of them knew each other, that late in the night on the day of occurrence the second accused was seen in the temple of Kalka Devi situate at Prantij along with a Sadhu who was not traced are all minor and flimsy circumstances which do not go to establish a chain of events pointing to the guilt of the accused. PW 17's evidence that on the night when he saw the second accused in the temple he appeared to be little frightened was not accepted by the Trial Court on the ground that there was enmity between the second accused and the witness. There was no reason why the High Court should have discarded this reason and accepted the evidence of PW 17 in this regard. Besides such evidence is neither here nor there. The recoveries relating to grain of rice at the place of occurrence and the same type of rice at the house of the second accused do not show any involvement of the accused in the commission of the crime. The rice is not as such a distinguishable article being one commonly found in houses and that could not be trated as any incriminating circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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