1. This is an appeal by accused Nos. 2 and 3, who have been convicted by the Additional Sessions Judge, Kolhapur, Under Sections 302, 397 and 449, all read with Section 34 of the I. P. C, They have been sentenced to suffer rigorous imprisonment for life, rigorous imprisonment for 7 years and rigorous imprisonment for 2 years respectively for the three offences, the substantive sentences being made to run concurrently. Along with them, accused Nos. 1 and 4 were also tried for the said three offences, but they were acquitted.
2. Accused No. 2 Imam and accused No. 3 Mansur are brothers. They are the sons of accused No. 1 Shamsher. Accused No. 4 Badshah alias Babu is the brother of accused No. 1 Samsher. They are the second cousins of one Abdul Sultan Hakim, whose widow Chandbi is the victim of the offences. She was done to death at her house on the night between 7th and 8th July, 1975. She was suffocated to death and robbed of her ornaments which she was wearing. According to the prosecution, the accused had a motive to commit the offences. They had an eye on her property which was a share in house bearing C. T. S. No. 2483 in the City of Kolhapur. Accused No. 4 had brought into existence a forged Will (Ex. 86) and an agreement of gift (Ex. 109) purporting to have been executed by the deceased husband of Chandbi, He had also obtained a blank paper (Ex. 110) with the thumb mark of Chandbi for being used against her. On the basis, of the Will, which was in favour of accused No. 4, he had even tried to get the house mutated in his name. As the ornaments were removed from the body after committing the murder, robbery was also the motive for the murder. The deceased Chandbi was leaving all alone in her house. Her sister-in-law Chandbi (P. W. 21) went to her house on the morning of 8th July, 1975 and at that time, she found Chandbi lying dead with her hands tied and face covered. The police were informed. In due course, the offence was registered and investigated. The dead body was sent for post-mortem examination. Dr. (Miss) Shobha Nallutwar (P. W. 14), who performed the autopsy, came to the conclusion that the death of Chandbi was caused by asphyxia which was due to suffocation.
3. There was no direct evidence, in the sense that nobody had seen Chandbi being done to death and robbed of her ornaments. The prosecution relied upon three circumstances : (1) the accused had a motive to commit the murder of Chandbi (2) accused Nos. 1 to 3 were seen at a short distance from the scene of the offence about the time of the commission of the murder of Chandbi and (3) accused Nos. 2 and 3 had sustained injuries on their person which could have been caused by the nails of the victim during the struggle which she must have made to free herself from her assailants.
4. Against accused No. 4, the only evidence was of motive. The learned trial Judge, however, observed :
The motive itself is not sufficient to hold the commission of the offence proved. There must be other evidence to prove the complicity of the accused and the motive could be used only to assure the truth.
He, therefore, acquitted accused No. 4.
5. As against accused No. 1, besides the motive, there was another circumstance, namely, that he and accused Nos. 2 and 3 were seen near the scene of the offence at the time when the murder must have been committed. The learned trial Judge found the circumstance proved but did not find it sufficient to convict accused No. 1. He, therefore, acquitted him also.
6. As for accused Nos. 2 and 3, besides the motive and the circumstance that they were seen near the scene of the offence about the time the murder must have been committed, there was a third circumstance that injuries were found on the person of accused Nos. 2 and 3 when they were arrested and these injuries were likely to have been caused by human nails. Such injuries were possible if the victim were to struggle against the assailants to free herself and, therefore, this circumstance, coupled with the other two circumstances, was sufficient to hold that accused Nos. 2 and 3 were the authors of the offences of murder and robbery. The learned trial Judge, therefore, convicted and sentenced them as aforesaid. Hence this appeal.
7. It is not disputed before us that Chandbi was murdered on the night between 7th and 8th July, 1975 in her house and robbery of ornaments which she was wearing was committed. The sole question for our decision is whether accused Nos. 2 and 3 have any hand in the commission of the murder and the robbery, So far as the motive is concerned, it is accused Nos. 1 and 4 who could be said to have some motive, if at all. If the learned trial Judge had not found the circumstance of motive sufficient in the case of accused Nos. 1 and 4, it is difficult to take that circumstance into consideration against accused Nos. 2 and 3. As for the second circumstance that accused Nos. 2 and 3 were seen near the house of Chandbi about the time her murder must have been committed, that evidence is not convincing. The witness examined by the prosecution to prove this circumstance is Vajir Rupeja (P. W. 5). He has a grocery shop in the locality. He opens his shop at 6-30 a.m. and keeps it open till 11 p.m. According to him, on the night in question, he was In his shop at about 10-15 p.m. He came out of his shop at that time, when he saw three persons going towards Kailasgad Temple. These three persons were accused Nos. 1 to 3. This evidence appears to us to be artificial. It is too much of a coincidence that the witness came out of Ms shop and, at that time, saw accused Nos. 1 to 3 going towards Kailasgad Temple. He has admitted that there were other persons also going by the road, but he could not say who they were. Accused Nos. 2 and 3 were arrested on 13th July, 1975 and it was thereafter on 16th July, 1975 that the statement of the witness was recorded by the police. It is difficult to believe that the witness would be in a position to remember that he had seen accused Nos. 1 to 3 going by the road towards Kailasgad Temple on the night of 7th July, 1975 at about 10-15 p-m. Accused Nos. 2 and 3 have denied having gone on that night by the road towards Kailasgad Temple. But even if they had really gone by the road towards Kailasgad Temple at about 10-15 p.m. on 7th July, 1975, that would not necessarily be an incriminating circumstance against them. They are residents of the same locality. It is. also In evidence that there is a Peer in Kailasgad Temple, who is worshipped by Muslims. If, therefore, accused Nos. 2 and 3 were seen going by the road towards Kailasgad Temple, that circumstance would be quite innocuous and not necessarily incriminating. It may be noted that this circumstance was present in the case of accused No. 1 also, but the learned trial Judge has not found it sufficient to convict him for the offences, of murder and robbery.
8. The only additional circumstance in addition to the two circumstances which the learned trial Judge has not found sufficient to convict accused No. 1, ii) the case of accused Nos. 2' and 3 was that some injuries were found on their person which could be caused by human nails. According to the learned trial Judge, these injuries were caused by the victim when she was struggling to free herself from her assailants. Accused Nos. 2 and 3 were arrested on 13th July, 1975. According to the panch witness Vijay Devane (P. W. 10), accused No. 2 had scratches on his neck and shoulder and accused No. 3 had scratches on his neck and back. Dr. Kripan (P. W. 12), who examined accused Nos. 2 and 3 on the same day, also found as many as seven abrasions on the person of accused No. 2 and six abrasions on that of accused No. 3 and according to him, these could be caused by human nail. Accused Nos. 2 and 3 have admitted the injuries, but they have explained them by stating that two days before the murder of Chandbi, they had carried split bamboos on their shoulders for fixing the fence and the forks of these bamboos had caused injuries to them. The learned trial Judge has not accepted this explanation and has instead preferred the theory that these injuries were caused to accused Nos. 2 and1 3 by human nails and that was when the victim was trying to free herself from her assailants. We are unable to see any basis for this speculative reasoning on the part of the learned trial Judge. The evidence is that Chandbi wag wearing ornaments and they were not found on her dead body. That shows that the murder was committed with the motive of robbery, but no ornaments have been traced to accused Nos. 2 and 3. It is also in evidence that Chandbi was all alone in her house. When the dead body was discovered on the morning of 8th July, 1975, both her hands were found tied by one end of her Saree. If accused Nos. 2 and 3 were the assailants, they were two male persons against one female victim and the state n which the dead body was found clearly indicates that the victim had been overpowered by her assailants. It is, therefore, difficult to see how so many injuries by her nails could have been caused by Chandbi on the person of accused Nos. 2 and 3. The learned trial Judge has thus entered into an entirely speculative reasoning in holding that the injuries on the person of accused Nos. 2 and 3 were caused by the nails of the victim when she tried to free herself from her assailants.
9. These were the only three circumstances taken into account by the learned trial Judge in convicting accused Nos. 2 and 3. We have shown that, in the opinion, of the learned trial Judge himself, the first two were not sufficient for conviction because those circumstances were present against accused No. 1 also, but he has not been convicted, It is the additional third circumstance against accused Nos. 2 and 3 which seems to have led the learned trial Judge to convict them of the offences. That additional circumstance, however, is not of a conclusive nature. We are, therefore, surprised that on such flimsy evidence, far-fetched circumstances and by resorting to some speculative reasoning, the learned trial Judge has persuaded himself to convict accused Nos. 2 and 3 of such serious charges as murder and robbery. We have shown that there could be some motive for accused Nos. 1 and 4 Taut hardly any motive for accused Nos. 2 and 3 to commit the offences. In regard to the second and third circumstances, in the first place, they were not established. But even if those circumstances had been established, they would hardly be sufficient to conclude that accused Nos. 2 3 were the persons who had commit the murder of Chandbi and robbed of her ornaments, Their conviction was, therefore, clearly wrong and this appeal has to be allowed.
10. In the result, the appeal is allowed, the conviction of the appellants as well as the sentences imposed on them are set aside and they are acquitted. They should be set at liberty forthwith.