STATE OF GUJARAT v. ANILKUMAR PURANMAL GUPTA — 1999 DIGILAW 378 (GUJ)

A. L. DAVE, J. ( 1 ) THESE two revision applications arise out of an order that came to be passed by the learned City Sessions Judge in Sessions Case No : 195 of 1998 below application Exh. 7, 8 and 15 tendered before him. These applications were tendered on behalf of the different accused persons for discharge. The learned Additional City Sessions Judge after considering the arguments advanced and their merits, passed impugned order on 2 2/01/1999 granting application and rejecting remaining two applications. The State having been aggrieved by grant of application Exh. 6 discharging accused No. 8 has preferred Criminal Revision Application No : 141/99. While these applications were being argued, the arguments were advanced for discharge of accused No. 2 and 6 before the learned Sessions Judge and the learned Sessions Judge while passing the impugned order, did not consider the oral request for discharge of accused No. 2 and 6 for which the accused No. 2 and 6 are aggrieved and they have therefore preferred Criminal Revision Application No : 220 of 1999 seeking quashing and setting aside the direction of the learned Additional City Sessions Judge for framing charge against accused persons including accused No. 2 and 6. Under these circumstances, both these revision applications are heard together and are disposed of by this common judgment. ( 2 ) BEFORE the arguments are considered, brief facts of the matter may be recorded. According to the prosecution case, one Surendrakumar Nandkishor Agrawal (accused No. 1) runs his business at Ahmedabad in the name and fashion of Vaishali Emporium. He had engaged one lady Chartered Accountant who later became a Director, named Sushama Nilkantha Vaidya (the deceased ). It is further case of the prosecution that association of these two persons ultimately resulted into an affair between the two and as a result accused No. 1 rented a premises at Gandhinagar to facilitate continuance of the affair and association. Accused No. 2 Manjuben is the wife of Surendrakumar Nandkishor Agrwal, Accused No. 1. Accused No. 3 Narendrakumar Punamchandra Gupta is the cousin brother of accused No. 2. Accused No. 4 Atul Babubhai Sharma is the employee of accused No. 1. Accused No. 5 Ramchandra Ramfal Awasthi is the driver of accused No. 1. Sangitaben wife of Arvindbhai Chhotalal Shah - accused No. 6 is the an employee of accused No. 1. Accused No. 3 Narendrakumar Punamchandra Gupta is the cousin brother of accused No. 2. Accused No. 4 Atul Babubhai Sharma is the employee of accused No. 1. Accused No. 5 Ramchandra Ramfal Awasthi is the driver of accused No. 1. Sangitaben wife of Arvindbhai Chhotalal Shah - accused No. 6 is the an employee of accused No. 1. Accused Anilkumar Puranmal Gupta is the brother in law of Narendra Punamchandra Gupta accused No. 3. ( 3 ) AS per the prosecution case, the affairs between accused No. 1 and the deceased were not approved and /or appreciated by accused No. 2. It caused disturbance in the family life and therefore, a conspiracy was hatched amongst accused persons to do away with the deceased. In order to complete act conspired, they arranged a Sari sale at Surat between 12/08/1997 and 17th August, 1997. For this purpose, accused No. 1 and many of his staff members went to Surat on 10th August, 1997. Agrawal Samaj Hall at Surat was the venue of the Sale and the sale party was lodged at Hotel Every Day Inn. It is further the case of the prosecution that deceased was not inclined to go to Surat to attend the Sale. But somehow, accused No. 1 prevailed upon her and convinced her to go to Surat on 12/08/1997. The deceased had a social function to attend at Bombay on 15/08/1997 and she therefore went to Surat on 1 2/07/1997, stayed at Hotel Every Day Inn and on 14th night she headed for Bombay and returned from Bombay in early morning hours of 16/08/1997. In the mean time, accused No. 2 who was not supposed to be attending the Sale at Surat, decided to attend sale at Surat along with her children. She travelled by her car along with accused No. 3 to Surat. The car was driven by driver Ketan Modi. They started from Ahmedabad in the evening of 15th July and reached Surat in very early morning hours at about 2. 15 hrs. , of 16/07/1997. Arrangements were already made for their stay at Hotel Holiday Inn. On 16th at about 10. 30 A. M. accused No. 2 with her children went to the venue of Sale. On the other hand at about 11. 30 Hrs. 15 hrs. , of 16/07/1997. Arrangements were already made for their stay at Hotel Holiday Inn. On 16th at about 10. 30 A. M. accused No. 2 with her children went to the venue of Sale. On the other hand at about 11. 30 Hrs. , it was noticed that deceased who was halted at hotel Every Inn was found to be having a heated discussion on telephone with somebody. She looked very much disturbed. At that time, as per the prosecution case, the accused No. 6 was also there. She tried to calm down the deceased but in vain. They both went to the room upstairs, came down again and again the deceased had some heated talk with someone on telephone. Around that time, two male persons came there, followed by accused No. 1. They tried to calm down the deceased, requested her to join them at the venue of Sale and ultimately, they all went to the room upstairs. After some time, they came down. The deceased was carried out by some male members of team and it was shown that who lady suddenly fallen ill and she was being carried out for medical treatment. Thereafter on 17th August, 1997, accused No. 1 went to the Hotel Every Day Inn in company of a lady who has been later on identified by one of the witnesses as accused No. 2 and settled the bill. At that time, one of the witnesses casually enquired as to how was the lady who was suddenly fallen ill on previous day and the accused is said to have told him that she has recovered fully and she is the lady who is with him. Later on because the deceased did not reach Ahmedabad, her family members viz. her sister, her father and mother started making enquiry and as they did not get proper reply or information, they lodged complaint with Navarangpura Police Station about missing of the deceased. On that basis, Navarangpura Police made inquires. Simultaneously, a writ petition for Habeas Corpus also came to be filed by the father, mother and sister. That writ petition came to be disposed of with a direction by the Court that the investigation be handed over to and be persued by CID Crime Branch, Gandhinagar. On that basis, Navarangpura Police made inquires. Simultaneously, a writ petition for Habeas Corpus also came to be filed by the father, mother and sister. That writ petition came to be disposed of with a direction by the Court that the investigation be handed over to and be persued by CID Crime Branch, Gandhinagar. Pursuant thereto, investigation was carried out by CID Crime Branch, statements recorded, identification parade held, panchnama made, lie detector test performed and ultimately chargesheet came to be filed against eight accused persons details whereof are given as above. ( 4 ) MR. UMESH Trivedi, learned APP appearing for the State - Revisioner in revision application No : 141/99 tried to convince this Court that the learned Additional City Sessions Judge has committed an error in discharging accused No. 8. But when it came to screening the investigation papers filed with the chargesheet, no material and evidence to establish any such nexus between accused No. 8 and the crime, direct, indirect or remote could be found. In the circumstances, the revision application No. 141/99 cannot be entertained. ( 5 ) SO far as the revision application No : 220 / 99 is concerned, Mr. A. D. Shah, learned advocate appearing for the revisioner accused No. 2 and 6 submitted that the learned Additional City Sessions Judge has not taken into consideration the fact that there is no evidence of any participation by accused No. 2 in the offence. There is no evidence to indicate any conspiracy or participation of accused No. 2 in conspiracy. He submitted that only evidence against her is to the effect that she accompanied accused No. 1 on 17/08/1997 to Hotel Every Inn while accused No. 1 had gone there to settle the bill. At that time, it is alleged that accused No. 1 tried to pass of accused No. 2 as the lady (deceased) who had fallen ill on previous day. Mr. Shah submitted that there is nothing to indicate that accused No. 2 had any knowledge about accused No. 1 passing her of as the deceased because there is no material to indicate as to whether accused No. 2 was within ear shot at the time when this talk transpired between accused No. 1 and the witness Ashok Tripathi. Mr. Mr. Shah submitted that there is nothing to indicate that accused No. 2 had any knowledge about accused No. 1 passing her of as the deceased because there is no material to indicate as to whether accused No. 2 was within ear shot at the time when this talk transpired between accused No. 1 and the witness Ashok Tripathi. Mr. Shah further submitted that barring these two pieces of evidence, there is nothing even to indicate that the accused No. 2 even had knowledge about the death of the deceased nor there is anything to indicate that the accused No. 2 was amongst the conspirators. Mr. Shah submitted that at this juncture, that the Court has to proceed on the evidence collected by the investigating agency and produced along with chargesheet. The Court cannot take into consideration what may be likely to come at the time of trial from the prosecution side. He submitted that the evidence that may be produced along with the chargesheet, should be such that it can be translated into an admissible evidence which can be relied upon by the Court at the time of trial. Mr. Shah submits that the entire prosecution case hangs upon presumption, surmises, inferences and conjunctures. He urged that in this light of the case, the learned Additional City Sessions Judge ought to have discharged accused No. 2. ( 6 ) AS regards accused No. 6 Sangita, Mr. Shah submitted that she is an employee of accused No. 1 barring this, there is nothing to indicate that she was in any manner involved with accused No. 1 or his personnel affairs. On the contrary, there are indications to show that the accused No. 6 and the deceased were close friends to the extent that they used to borrow each others dresses. Mr. Shah submitted that presence of Sangita on 16th July, 97 at Hotel Everyday Inn when the incident is alleged to have occurred, is not established by accepted norms of evidence, even if the submissions are taken at face value. He submitted that witness Ashok Tripathi only states that a lady who was one of staff members tried to calm down the deceased whose name was Sangita as learnt by him lateron. This therefore, is a piece of hear say evidence and cannot be relied upon by the Court at the time of trial and therefore, Mr. He submitted that witness Ashok Tripathi only states that a lady who was one of staff members tried to calm down the deceased whose name was Sangita as learnt by him lateron. This therefore, is a piece of hear say evidence and cannot be relied upon by the Court at the time of trial and therefore, Mr. Shah submitted that accused No. 6 also should have been discharged. Another piece of evidence that prosecution relies upon according to the Mr. Shah is statement of Santosh Patnaik but that statement also does not speak of the name of lady whom he had seen on 16/08/1997 around the time when the incident is alleged to have occurred. Although, he says that a lady was there, two persons came later on. All of them went to room upstairs and when they came down, the deceased was carried by one of the male members and it was shown that she had fallen ill suddenly. Thus, this piece of evidence cannot be considered as sufficient, according to Mr. Shah, for even framing of charge. According to him, these aspects have been overlooked by the learned Additional City Sessions Judge and he therefore urged that the revision application may be allowed and accused No. 2 and 6 may be directed to be discharged. Mr. Shah has placed reliance on several decisions. ( 7 ) MR. TRIVEDI, learned APP has opposed this revision application vehemently. He submitted that conspiracy is always hatched in dark and in privacy. There cannot be any direct evidence in this regard but the circumstances as a whole have to be taken into consideration and the evidence has to be considered in light of those circumstances and inference has to be drawn at least at the stage of framing of charge. The Court may not be swayed away with the likely result of the trial. It should not weigh with the Court if the trial will result into an acquittal or conviction, at the stage of framing of charge. Mr. Trivedi submitted that evidence indicates that relation between accused No. 1 and the deceased were old by about one and half years. This had disturbed the domestic life of Accused No. 1 and Accused No. 2. Accused No. 2 had rented premises at Gandhinagar where the deceased and accused No. 1 used to meet. Mr. Trivedi submitted that evidence indicates that relation between accused No. 1 and the deceased were old by about one and half years. This had disturbed the domestic life of Accused No. 1 and Accused No. 2. Accused No. 2 had rented premises at Gandhinagar where the deceased and accused No. 1 used to meet. There is material to indicate that about 15 days prior to incident i. e. around 30/07/1997, accused 1 and the deceased had some differences. With this back ground, it requires to be considered that accused No. 1 who had never arranged sale outside Ahmedabad, arranged a sale at Surat. The deceased was not inclined to go to Surat but accused No. 1 prevailed upon her and ensured that she joined the sale team at Surat. Accused No. 2 who was not at all supposed to be going to Surat, went to Surat suddenly and within hours of her reaching Surat, the incident occurred. Accused No. 2 although is not found to be present when the incident occurred, her presence at the sale venue around time when the deceased had heated telephonic talk with someone, becomes material factor. ( 8 ) MR. TRIVEDI submitted that the conduct, both prior and subsequent to the incident, of the accused persons would be a relevant factor. He has submitted that accused No. 2 who went to hotel Everyday Inn with accused No. 1 on 17th August, 1997, did not oppose to the conduct of the accused No. 1 of passing her over as lady who had fallen sick the previous day i. e. 1 6/08/1997. In ordinary course if she was innocent and had nothing to do with the conspiracy, she would have certainly objected to the conduct of the accused No. 1 of passing her off as the deceased, particularly when reference was made to the deceased. Mr. Trivedi, learned APP has drawn attention of this Court towards the various statements of employees of Agrawal Samaj hall at Surat, Angadia and staff members of the Holiday Inn to indicate that the accused No. 1 tried to manoeuver the things either by bribing or by administering threat to these people to cover up the whole story. Mr. Trivedi, learned APP has drawn attention of this Court towards the various statements of employees of Agrawal Samaj hall at Surat, Angadia and staff members of the Holiday Inn to indicate that the accused No. 1 tried to manoeuver the things either by bribing or by administering threat to these people to cover up the whole story. He tried to manage to see that the Stay at Hotel Everyday inn was totally camouflaged and an attempt was also made to show that the entire sale team was stationed at the Agrwal Samaj Hall itself. Further it is argued by Mr. Trivedi that so far as the accused No. 2 is concerned, she came to Surat in the very early hours of 16/08/1997. She left Ahmedabad on the previous day, in the evening. She had been in constant touch with the accused No. 1 on telephone with the help of cellular phone. Mr. Trivedis argument therefore was that the entire episode was very well planned and was the outcome of the conspiracy to which both accused No. 2 and 6 were also parties. Mr. Trivedi submitted that accused No. 2 was not supposed to be going to Surat but because the object of the conspiracy could not be fulfilled till 15th August, she quickly decided to go to Surat to prevail upon the other conspirators and to ensure fulfilment of the object of the conspiracy, as a result, the incident occurred within hours of her reaching Surat. He has also argued that in Habeas Corpus petition filed by the father, mother and sister of the deceased, accused No. 2 has filed affidavit stating that she does not know anything about the disappearance of the deceased. Another factor that Mr. Trivedi highlighted was that the accused No. 2 has refused to undergo a polygraph test (Lie Detection Test ). It transpires from the evidence according to Mr. Trivedi that after accused No. 2 reached hotel Holiday Inn at Surat, accused No. 1 had stayed at the same hotel as can be born out from the vouchers collected by the investigation agency. Mr. Trivedi has drawn attention of this Court to a statement of Jogendarsingh and Mrugesh Khatri to show that these two witnesses have implicated the accused persons with the murder of the deceased. Mr. Trivedi has drawn attention of this Court to a statement of Jogendarsingh and Mrugesh Khatri to show that these two witnesses have implicated the accused persons with the murder of the deceased. Accused No. 1 could manage to prevail upon Mrugesh Khatri not to tell the truth for the long time when the matter was investigated upon by the Navrangpura Police Station as well as Umra Police Station. It was only when the present investigating agency came into picture that Mrugesh Khatri opened up and stated what according to him was truth to implicate accused No. 1 and others. Mr. Trivedi has also placed reliance on several decisions of the Honble Apex Court. Mr. Trivedi submitted that statement of sister of the deceased indicates that there was a rift between accused No. 1 and the deceased few days before the incident. Last but not the least, Mr. Trivedi submitted that if the medical evidence is considered, there were injuries on various parts of the body which would indicate that this could not be suicidal death, it has to be a homicidal death wherein a number of persons must have been involved, which would implicate at least those persons who were in the room when the incident occurred. Under these circumstances, Mr. Trivedi urged that the revision application preferred by the accused persons viz. Criminal Revision Application No : 220 of 1999 may be dismissed. ( 9 ) BEFORE proceedings to the factual aspects, the proposition of law that emerge from the various decisions stated by both the sides can be briefly stated as under; ( 10 ) AT the time of either framing the charge or deciding the question of discharge of the accused, the Court is required to look into the evidence collected by the investigating agency and produced along with chargesheet. Any material or evidence that is likely to be produced on record which may be collected and to be brought on record at later point of time cannot be taken into consideration while deciding this question. The Court while deciding this question, cannot enter into arena of detailed evaluation the evidence. However, the Court may examine the evidence with a view to ascertain if prima facie case, as alleged, is made out, even accepting the material at face value. The evidence as it appears as to be seen. The Court while deciding this question, cannot enter into arena of detailed evaluation the evidence. However, the Court may examine the evidence with a view to ascertain if prima facie case, as alleged, is made out, even accepting the material at face value. The evidence as it appears as to be seen. For considering the question of conspiracy, legally permissible inference can be drawn. While drawing inference, Court cannot proceed on any presumption or assumption. To put it differently, inference cannot be based on another inference or presumption. The nature of the evidence whether reliable or otherwise cannot be considered. Only that piece of evidence / material collected by investigating agency which can be / likely to be translated into legally admissible evidence, can be looked into by the Court. ( 11 ) WITH this above legal proposition, now the material on record will have to be scanned. So far as accused No. 6 is concerned, it transpires from the material on record collected by the investigating agency that she was part of the Sale team, which went to Surat in a luxury bus on 10th of August, 1997. She was lodged at Hotel Everyday Inn along with other team mates. It transpires from the material that on 16/08/1997, the deceased was at hotel in forenoon hours. She had a heated discussion on telephone with somebody for long time. It also transpires that around that time, accused No. 6 was there and she tried to calm her down. This emerges from the statement of Ashok Sreedhar Tripathi dated 14th December, 1997. What he says can be broadly narrated as under;"on 16/08/1997, he was at the Hotel in his office. At that time, Santosh Patnaik and one Mr. Ramesh Patnaik who was handling the STD PCO were also there. At around 11. 00 11. 30 A. M. The Sale staff had gone to the vanue of the sale but Sushama Vaidhya - the deceased, whose photograph was shown to him was at the hotel. She came to the office and made a telephone call and started talking in a loud voice. Thereafter, he went to look after repairs of electric motor. Thereafter, one of the lady staff members came, whose name he later on learnt to be Sangeeta. There was some heckllings between two and the girl (Sangeeta) was trying to persuade the deceased. She came to the office and made a telephone call and started talking in a loud voice. Thereafter, he went to look after repairs of electric motor. Thereafter, one of the lady staff members came, whose name he later on learnt to be Sangeeta. There was some heckllings between two and the girl (Sangeeta) was trying to persuade the deceased. Both of them then went to the room upstairs. He was told by his staff member Santosh Patnaik later that the girl who fallen sick and was taken away from the room by Surendera Sheth and his personnel. " ( 12 ) IF the statement of Santosh Patnaik dated 14th December, 1997 is seen, he states something more to add in detail. He states that after heated discussion on the telephone by the deceased, a lady staff member came to the Hotel and was talking to the deceased. Thereafter, they went to the room, again came down. After some time two male staff members of the sale came to the hotel and tried to convince Sushama for going to the sale value. Thereafter, Surendra Sheth - Accused No. 1 came there and all of them went upstairs. After some time, they came down, when Sushama was carried away by fattish men and was taken to the car parked outside. On enquiry, he was informed that lady has fallen sick and is therefore being taken to hospital. Thereafter, the Manager came and he informed Ashok Tripathi that something wrong has gone to Sushama and she has taken to hospital in a car. After she was taken to the hospital, she has not come back to the hospital. ( 13 ) IT is argued by Mr. Shah that these are two only pieces of evidence on prosecution relies to implicate the accused No. 6. According to him, the statement of Ashok Tripathi does not reveal identity of Accused No. 6. The only connecting material is that he later on learnt that her name is Sangeeta. According to Mr. Shah, this would a piece of hear say evidence and it cannot be admitted into evidence legally and therefore, it cannot be looked into. As regards the statement of Santosh Patnaik, Mr. Shah argued that he does not state anything about the accused No. 6. Neither the name nor the identity is disclosed from this statement. And therefore she requires to be discharged. As regards the statement of Santosh Patnaik, Mr. Shah argued that he does not state anything about the accused No. 6. Neither the name nor the identity is disclosed from this statement. And therefore she requires to be discharged. In this regard, it may be noted that the evidence collected by the prosecution forming part of the chargesheet has to be taken as a whole. Each statement cannot be looked into individually and considered. Such statement in isolation from other evidence collected cannot be considered. If statement of Ashok Tripathi and Santosh Patnaik are read together,the picture that emerges is that the deceased had a heated discussion on telephone, one of the lady staff members tried to convince her, whose name, Ashok Tripathi, later on learnt to be Sangeeta. How this knowledge came to Ashok Tripathi is not clearly disclosed in the statement and therefore, at this stage, it would not be proper for this Court to presume this to be hearsay evidence and therefore not admissible in evidence and cannot be later on translated into a legally admissible evidence at the time of trial. Further, the statement of Santosh Patnaik indicates that after heated discussions, the lady staff member tried to convince the deceased. They went upstairs, again came down, two male staff members came there and tried to convince the deceased to go to the venue of the sale. They were followed by accused No. 1, then ALL of them went to the room whereafter the deceased was carried away to the car for being taken to the hospital. So from this, it is clear that all persons who are present, had gone to the room and whereafter the deceased was carried for being taken to the hospital. All went upstrairs in to the room would prima facie include Accused No. 6 also. Her presence in the room where the incident is alleged to have occured, at the time when incident is alleged to have accured is seen, prima facie, from investigation papers. At this stage, therefore, keeping this two statements in mind, it cannot be said that the learned Sessions Judge has committed an error in holding that the this is not the fit case for discharge. It would not be proper to discharge the accused No. 6 at this stage in light of these materials. This Court may not taken to have considered anything on merits. It would not be proper to discharge the accused No. 6 at this stage in light of these materials. This Court may not taken to have considered anything on merits. Evaluating the evidence when it is led, will be the deciding factor at the trial. It is a question of evidence as to how Ashok Tripathi derived knowledge about the lady being Sangeeta and therefore, at this stage, this Court is not inclined to accept Revision vis-a-vis accused No. 6. ( 14 ) NOW coming to the question of accused No. 2. The picture that emerges from the evidence is that she was not supposed to be going to Surat to attend the sale. But because of the insistence of the children, she started to go to Surat. She therefore started from Ahmedabad in evening of 1 5/08/1997 by car in company of accused No. 3. She reached Surat at 2. 15 A. M. on 1 6/08/1997 and stayed at hotel Holiday Inn in two suits reserved earlier. She left for the venue of sale viz. Agrwal Samaj Hall at about 10. 30 A. M. Thereafter, it appears that she accompanied by accused No. 1 to Hotel Everyday Inn on 17/08/1997 at about 11. 30 A. M. When accused No. 1 had gone there to settle the account of the hotel. At that time, accused No. 1 posed her as the lady who had fallen sick on the previous day i. e. the deceased. This is only material that is unearthed by the investigating agency so far as accused No. 2 is concerned. ( 15 ) MR. SHAH therefore argued that only on basis of an attempt on the part of accused No. 1 to pass her over as the deceased, an inference cannot be drawn that accused No. 2 was a party to the conspiracy. To counter this argument, Mr. Trivedi argued that accused No. 2 if she was innocent, would have in ordinary course of nature objected to accused No. 1 passing her off as the deceased and therefore, an inference may be drawn against her. Mr. Trivedi submitted that her presence at Surat itself is indicative of the fact that she was party to the conspiracy and because the object of the conspiracy could not be fulfilled from 12th 15/08/1997, came down to Surat on 16/08/1997 to ensure that object of the conspiracy is fulfilled. Mr. Trivedi submitted that her presence at Surat itself is indicative of the fact that she was party to the conspiracy and because the object of the conspiracy could not be fulfilled from 12th 15/08/1997, came down to Surat on 16/08/1997 to ensure that object of the conspiracy is fulfilled. ( 16 ) IN this regard, statement of Ashok Tripathi dated 14/12/1997 is very material. The relevant portion can be broadly narrated as under;"on 17th August, 1997, at about 11. 00 - 11. 30 A. M. Sheth Surendra came to the hotel in company of an unknown beautiful lady. That lady was not known to him because she was not amongst the staff members of the sale team. Surendra asked him to square up the account. . . . I casually enquired about the lady who had fallen sick the previous day. At that time, Surendra Sheth posed the lady in his company as the lady who had fallen sick the previous day and tried to convince him. But I was not convinced but because I had no other interest, I did not probe further. . . . . . . " ( 17 ) IT transpire from the investigation papers further that test identification parade was later arranged and theis witness Ashok Tripathi identified accused No. 2. From the test identification parade panchnama, there does not appear anything to indicate that the lady identified at the test identification parade was accused No. 2. But it transpires from the statement of Ashok Tripathi dated 20th February, 1998 that on that day, the witness had attended test identification parade and had identified accused No. 2 who was shown by accused No. 1 as lady who had fallen sick. There is nothing beyond this so far as the material against Accused No. 2 is concerned. ( 18 ) A close scrutiny of the statement of Ashok Tripathi dated 1 4/12/1997 results into failure to indicate as to where the lady was when accused No. 1 tried to pass her over as the deceased. There is nothing beyond this so far as the material against Accused No. 2 is concerned. ( 18 ) A close scrutiny of the statement of Ashok Tripathi dated 1 4/12/1997 results into failure to indicate as to where the lady was when accused No. 1 tried to pass her over as the deceased. Whether she was in close vicinity which would facilitate her to hear what transpired between accused No. 1 and Ashok Tripathi or whether she was away is not disclosed from the statement and therefore, it would be a presumption on part of the Court to say that she did not react to this passing her over by accused No. 1 as the deceased on that day. This presumption will have to be drawn by presuming that she was in a vicinity which would possibalise hearing what transpired between Ashok Tripathi and accused No. 1. In absence of anything to indicate that she was within ear shot distance, this presumption cannot be drawn. This is more so, when there is not an iota of evidence that she is part of the conspiracy. The entire prosecution case, proceeds on presumption of her being part of the conspiracy and this presumption is tried to be drawn from the fact that a sale was arranged at Surat which was never arranged out side Ahmedabad. She was not supposed to go at Surat and she went to Surat and that she was in touch with accused No. 1 on telephone. These things cannot lead to a legitimate inference of accused No. 2 being part of the conspiracy only because she was disturbed because of the relationship between accused No. 1 and the deceased. Any progressive businessman would try to expand the territory of his business operation for development. The investigation papers themselves indicate that accused No. 2 went to Surat at the insistence of her children and contact on telephone may not necessarily lead to legitimate inference of a conspiracy. Her presence at the venue of sale around the time when the deceased had a heated discussion on telephone also would not indicate anything to infer that she is party to the conspiracy. In this view of the matter, this Court is not inclined to accept the prosecution case about the accused No. 2 being a party to the conspiracy. Her presence at the venue of sale around the time when the deceased had a heated discussion on telephone also would not indicate anything to infer that she is party to the conspiracy. In this view of the matter, this Court is not inclined to accept the prosecution case about the accused No. 2 being a party to the conspiracy. It is true that there cannot be any direct evidence but in the instant case of accused No. 2, an attempt is made by the prosecution to establish the case against accused No. 2, even prima facie on drawing presumption after presumption and inference after inference founded on each other. Under these circumstances, the revision application in respect of accused No. 2 requires to be allowed. ( 19 ) AT this point, it may be noted that Mr. Trivedi, learned APP produced on record certain statements as the statements given by AT and T during the course of investigation to indicate that there were repeated number of calls between accused No. 1 and accused No. 2. These statements are not taken into consideration by this Court on the ground that they do not form part of the chargesheet and considering the principle as laid down by the Apex Court in case of SURESH BUDHARMAL KALANI @ PAPPU KALANI VS. STATE OF MAHARASHTRA JT 1998 (6) SC 371. Their Lordships observed in Para-6 as under;"at this stage the court is required to confine its attention to only those materials collected during the investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may, adduce in the trial, which would commence only after the charges are framed and the accused denies the charges. . . . "their Lordships have also observed in para-5 that presumption can be drawn only from facts and not from other presumptions - by a process of probable and logical reasoning. ( 20 ) MR. TRIVEDI has placed reliance on decision in the case of STATE OF MAHARASHTRA VS. SOM NATH THAPA AIR 1996 Supreme Court 1744. He has drawn attention of this Court to para-24, wherein it has been observed as under;"to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. TRIVEDI has placed reliance on decision in the case of STATE OF MAHARASHTRA VS. SOM NATH THAPA AIR 1996 Supreme Court 1744. He has drawn attention of this Court to para-24, wherein it has been observed as under;"to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of action, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. " . ( 21 ) THE decision cannot be applied to the present case for the first reason being that it does not deal with the case wherein offence consisted of chain of action and sedond being that there is nothing to indicate that accused No. 2 had any knowledge about the death of the deceased at the relevant time. Likewise, there is no material good enough to draw legitimate inference about accused No. 2 being part of the conspiracy even from her previous or subsequent conduct. An attempt is made to show that accused No. 2 in her affidavit in reply in habeas corpus petition has denied the knowledge. The affidavit does not form part of the prosecution papers, even if it is so, this Court is at loss to find out for material to show a infer that she was not telling the truth. The prosecution relied upon the decision in the case of STATE THROUGH SUPERINTENDENT OF POLICE, CBI / SIT ETC v. NALINI AND OTHERS ETC ETC. 1999 (2) Crimes 59 (SC), Their Lordships in para 220 of the said decision has laid principles governing law of conspiracy. The prosecution has put thrust on the third principle which runs as under;"conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. 1999 (2) Crimes 59 (SC), Their Lordships in para 220 of the said decision has laid principles governing law of conspiracy. The prosecution has put thrust on the third principle which runs as under;"conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. " ( 22 ) AS discussed above, there cannot be any two opinion that conspiracy may have to be inferred as usually it is hatched in private and secrecy. But the inference that requires to be drawn need not take shape of conjecture but it has be legitimate and legally permissible, that can be said to be so only in case of a necessary inference, that would emerge from the circumstances and conduct of the accused. In this case, Their Lordships have also taken into consideration the decision of STATE OF MAHARASHTRA VS. SOM NATH THAPA (SUPRA ). ( 23 ) IT was argued by the prosecution that in the case of STATE OF BIHAR V. RAMESH SINGH AIR 1977 SUPREME COURT 2018, it has been held that the evidence is not be weighed by the Court at the stage of framing of charge. There cannot be any dispute about this aspect. The evidence has to be taken into consideration and the prosecution has to show prima facie about the existence of the ingredients of the offence that the accused is charged with. Keeping this aspects in mind, the decision in the case on hand is arrived at. ( 24 ) IN STATE OF KARNATAKA V. L MUNISWAMY AND OTHERS AIR 1977 SUPREME COURT 1489 it was observed that for the purpose of the determining whether there is sufficient ground for proceedings against the accused, the Court possess comparatively wider discretion in exercise which can be determined the question whether any material on record if unrebuted is such, on basis of which, the conclusion can be said reasonably to be possible. ( 25 ) RELIANCE was also placed on RADHEY SHYAM V. KUNJ BEHARI AND OTHERS with STATE OF RAJASTHAN V. BEHAIR ALIAS KUNJI AND OTHERS AIR 1990 S. C. 121, it was observed therein in para-8;"on a consideration of the matter, we find the grievance of the appellants to be well founded. ( 25 ) RELIANCE was also placed on RADHEY SHYAM V. KUNJ BEHARI AND OTHERS with STATE OF RAJASTHAN V. BEHAIR ALIAS KUNJI AND OTHERS AIR 1990 S. C. 121, it was observed therein in para-8;"on a consideration of the matter, we find the grievance of the appellants to be well founded. The High Court has failed to give due consideration to the fact that the investigation of the case had been handed over to the C. I. D. because of unsatisfactory investigation by the authorities of Todabhim Police Station. As such the C. I. D. was under an obligation to examine once again the witnesses already examined and to examine other persons whom the original investigating agency ought to have examined but had failed to examine. In the very nature of things, a fuller and effective investigation by the C. I. D. is bound to bring out several materials not discovered or recorded by the first investigating agency. As how much acceptance has to be given to the investigation done by the C. I. D. and the statements of witnesses recorded by its officers is a matter which can be determined only after the trial is held and the witnesses and the investigating officer adduce their evidence on oath. As regards the non mention of the date of recording of the statement of Sravan Lal, a finding can be rendered on the omission only after the C. I. D. officer who recorded the statement is given opportunity to explain the reason for the omission. In so far as the High Courts view that "in the interest of justice, it is the duty of the Court under S. 482, Cr. P. C. to go into the merits of the evidence and appreciate correctly the documents and the statements filed by the police", we may only refer to Mohd. Akbar Dar v. State of Jammu and Kashmir, 1981 Supp SCC 80 : ( AIR 1981 SC 1548 ), where it has been pointed out that at the state of framing of charges, meticulous consideration of evidence and materials by Court is not required. "it was therefore argued that the statement recorded by the subsequent investigating agency viz. Akbar Dar v. State of Jammu and Kashmir, 1981 Supp SCC 80 : ( AIR 1981 SC 1548 ), where it has been pointed out that at the state of framing of charges, meticulous consideration of evidence and materials by Court is not required. "it was therefore argued that the statement recorded by the subsequent investigating agency viz. C. I. D. crime has to be taken into consideration but in the instant case, the statement recorded by the investigation made by the C. I. D. Crime is before this Court and it is only on the basis of that material that the decision is taken by this Court and not by taking into consideration the previous investigation which of course does not implicate the accused. ( 26 ) IN case of NIRANJAN SINGH KARAM SINGH PUNJABI V. JITENDRA BHIMRAJ BIJJA AND OTHERS with STATE OF MAHARASHTRA VS. JITENDRA BHIMRAJ BIJJAYA AND OTHERS with JITENDRA BHIMRAJ BIJJA AND OTHERS VS. STATE OF MAHARASHTRA AIR 1990 SUPREME COURT 1962 the following principle is laid down. "it seems well settled that at the Ss. 227-228 stage i. e. stage of framing the charge, the Court is required to evaluate the material and the documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. " The principle laid down in this decison if applied, indicate that statement of Ashok Tripathi and Santosh if ready together indicate possibility of presence of Accused No. 6 in the room where the incident is alleged to have occured. Like wise, the papers of investigation, despite a close scrutiny do not bear out anything to implicate Accused No. 2, even, prima facie and remotely. For accepting the prosecution, various inference after inference will have to be drawn which is not permissible. In absenc eof any materisals it is not possible to accept it is truth or fact. IT would not be safe nor legally proper to draw presumption / inference from another presumption / inference. For accepting the prosecution, various inference after inference will have to be drawn which is not permissible. In absenc eof any materisals it is not possible to accept it is truth or fact. IT would not be safe nor legally proper to draw presumption / inference from another presumption / inference. If the arguments of the prosecution are to be accepted in order to infer involvement of accused No. 2 in the conspiracy, the Court will have to, in absence of any material, presume following factors. (A) that the quarrel between accused No. 1 and the deceased on or around 30/07/1997 was so grave that the conspiracy was hatched and that too within few days thereof. (B) that the relations between accused No. 1 and the accused No. 2 had improved to an extent that they would indulge into a conspiracy to commit murder of the deceased as the relationship between accused No. 1 and the deceased had strained somewhere around 30th July, 1997 about 2 weeks prior to the incident. (C) that in order to fulfil the object of the conspiracy, the sale was organised at Surat within a short span to 12 days i. e. from 12-8-1997. (D) that because of the object of the conspiracy was not fulfilled between 12/08/1997 to 15th August, 1997, accused No. 2 went to Surat to ensure the fulfillment of object of the conspiracy. (This will have to be done against the material on record to show that trip to Surat was decided at the insistence of the children of accused No. 1 and 2 ) (E) that accused No. 2 was able to prevail upon accused No. 1 and others to fulfil the conspiracy. (F) accused No. 2 had knowledge of what transpired on 16/08/1997 at Hotel Everyday Inn (G) that when accused No. 2 accompanied accused No. 1 to Hotel Holiday Inn on 17/08/1997, she was within hearing distance when accused No. 1 tried to pass her off as the deceased. (This too will have to be done in total absence of any material, even remote, to indicate her presence in near vicinity within earshot ). (H) that her presence at the venue of sale at about 11. 30 A. M. on 1 6/08/1997 would indicate conspiracy and (I) that the telephonic talk with accused No. 1 during her journey to Surat was only in connection with the conspiracy. (H) that her presence at the venue of sale at about 11. 30 A. M. on 1 6/08/1997 would indicate conspiracy and (I) that the telephonic talk with accused No. 1 during her journey to Surat was only in connection with the conspiracy. In the opinion of this Court, this type of presumption after presumption based on one and another cannot be termed as an inference / legitimate inference to read the possibility of involvement of accused No. 2 in the conspiracy. The law permits drawing of inference for conspiracy provided the material on record, the circumstances and the conduct of the accused indicate possibility of a conspiracy and involvement of the accused in the conspiracy. ( 27 ) IN this view of the matter Revision Application No : 220 / 99 merits part admission. Revision Application in respect of the Accused No. 2 Manjulaben wife of Shri Surendra Nankishore Agrawal i. e. Revisioner No. 1, is allowed. She is discharged from charges against her. She is on bail. Her bail bonds be cancelled. Revision Application No. 220/99 in respect of Revisioner No. 2, Accused No. 6 - Sangeeta wife of Shri Arvindbhai Chhotalal Shah stands rejected. Revision Application No. 141 of 1999 also stands rejected. ( 28 ) AT this stage Mr. Trivedi, Ld. APP requests for continuing the interim relief granted earlier for period of 8 weeks to enable the prosecution to approach and challenge the order before the Apex Court. The request is objected by Mr. Shah stating that trial is being delayed for long time and two accused are in jail. Keeping these circumstances in mind, the interim relief granted earlier is directed to continue to operate for period of 6 weeks. Rule is discharged in Crim. Revision Application No : 141/99. So far as the Crim. Revision Application No : 220 / 99 is concerned, Rule is made absolute to the aforesaid extent. .