DARJI BACHU TAPU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [His Lordships after stating the facts of the case, further observed : ] ( Only a part of the Judgment approved for reporting is published.)

(2.) We would revert to the applicability of Sec. 201 I.P.C. later on, but so far as the above circumstances are concerned, we are constrained to observe that the chain of circumstances leading to the unnatural death of Bai Savita is not so complete as to lead us to hold that it was a particular accused or all of them who had committed the offence of murder. The missing link is regarding the occurrence during the fateful night of 17-12-1984 and the early morning of 18-12-1984. Accused No. 2 was not found at the place where the dead body was kept when accused No. 1 went to Balu Khimji and other witnesses for taking their help for removal of the dead body allegedly to a hospital. It was only accused No. 3 Bhaniben who was present near the dead body. The mis-fired attempt to explain the cause of death of Bai Savita by accused No. 1 would certainly raise a suspicion that he was trying to conceal the real cause of death and was giving an information regarding the cause of death which he knew to be false. Can we say with certainity that it was either accused No. 1 or accused No. 2 or accused No. 3 or all of them jointly who had strangulated the victim ? If unfortunately on the basis of the evidence on record, we are not able to say that any of them or all of them had committed the offence, we would be taking a leap in the dark by holding that all of them were guilty of committing murder because of the alleged common intention to be spelt out from the evidence regarding wreckage of matrimonial life of the victim Savitaben. Perhaps such an inference would be far-fetched and may not conform to reality. No doubt in such circumstances, our imagination is bound to run amuck tracing certain missing links which are not on record, but that would be a too risky inference to be drawn by the Court.

(3.) So far as the charge of committing . an offence under Sec. 302 I.P.C. read with Sec. 34 I.P.C. is concerned, the establishment of common intention beyond reasonable doubt will make one accused liable for the offence actually committed by the other, and it is only in very exceptional circumstances established by cogent evidence to prove a pre-arranged plan and participation in the act constituting the offence that the Court would eome to a conclusion that all the accused or some accused had the common intention to commit the offence and that, therefore, all of them would be liable for committing the same offence. We must regret to say that there is no such compelling evidence on record to lead us to the conclusion that cither accused No. 1, or accused No. 2, or accused No. 3, or all of them jointly, strangulated the victim Savitaben, or that all of them had entertained the common intention to cause her death. Mere suspicion about the attempt to shield the offender created by the words of accused No. 1 will not permit us to make an inference regarding the common intention to cause death.