Anant S. Dave, J. - This appeal under Section 374 of the Code of Criminal Procedure, 1973 is preferred by the appellant-original accused no. 1, who came to be convicted for the offences under Sections 302, 120-B and 201 of the Indian Penal Code and for offence under Section 302 of IPC sentenced to life imprisonment with fine of Rs. 100/- and in default thereof, 15 days of simple imprisonment, and for offence under Section 201 of IPC sentenced to three years simple imprisonment with fine of Rs. 100/- and in default thereof, 15 days of simple imprisonment.

2. Initially, eight accused were tried in Sessions Case No. 150 and 152 of 2006 for the charge framed under Section 120-B, 201, 302, 303 of IPC and Section 135 of the Bombay Police Act. At this stage, we deem it just and proper to reproduce the charge framed by learned trial Judge which also include the manner in which the crime was committed by the accused.

"Accused no. 1, Farhin @ Shahin D/o. Aalambhai Jamalbhai Pathan were in love with deceased Devang Rameshbhai Joshi, Residing at:Khokhara, Ahmedabad five years ago and upon saying by deceased Devang Rameshbhai Joshi to marry with hindu girl and upon denying to marry with accused no. 1, the accused no. 1, Farhin @ Shahin had decided to kill deceased Devang Rameshbhai Joshi anyway and gathered the accused and hatched criminal conspiracy to kill Devang Rameshbhai Joshi before 07/05/2006 and decided to destroy the evidence after committing criminal offence to escape from it and by plotting the said conspiracy in the house of accused no. 1, you all accused have committed an offence punishable under Section 120 (B) of the Indian Penal Code.

To fulfill conspiracy, the accused no. 1-Farhin @ Shahin had called deceased Devang Rameshbhai Joshi at her residential house on 07/05/2006 and at that time, accused no. 2 - Amjad Haiderkhan Pathan, accused no. 3- Irfan @ Rakesh Aalambhai Jamalbhai and accused no. 7- Imtiyaz Mahebubbhai Parmar (Pathan) remained present in the house of accused no. 1-Farhin @ Shahin. The accused no. 4-Irfanahemad @ Kane Abdulkadar with his auto-rickshaw no. GJ-1 AC-2115, accused no. 8-Vijay Mohan Chauhan with his motorcycle and accused no. 5- Firoz @ Sattar, accused no. 6-Sultan @ Machchhi Pathan remained present in the dark beside the house of accused no. 1 - Farhin @ Shahin Rangrej as part of preparation to kill Devangbhai Joshi. All the accused had, as per criminal conspiracy, killed deceased Devang Rameshbhai Joshi in the residential house of accused no. 1 and destroyed the evidence relating to the said criminal offence, you all have committed an offence punishable under Section-201 read with Section 120-(B) of the Indian Penal Code.

All the accused with intention to fulfill criminal conspiracy, at about 23 hours on 07. 05. 2006 with common intention to kill deceased Devang Rameshbhai Joshi, you the accused no. 1 - Farhin @ Shahin Aalambhai called deceased Devang Rameshbhai Joshi in your house and upon calling by you, deceased Devang Rameshbhai Joshi after parking his motorcycle below Lucky Duplex, had come to the house of accused no. 1.

You accused no. 1 - Farhin @ Shahin Aalambhai, accused no. 2 - Amjadkhan Haiderkhan Pathan, accused no. 3 - Irfan @ Rakesh Aalambhai Pathan and accused no. 7 - Imtiyazkhan Mastan Aalambhai Parmar (Pathan) were present there and upon arrival of accused Devang Rameshbhai Joshi at your residential house, all four accused had closed the door of the house, increased the volume of the T. V. to fulfill your common intention, made loop of plastic nylon string, fit it into throat of Devang Joshi and to kill him or with intention and knowledge that it will cause his death, pulled plastic string and deceased Devang Rameshbhai Joshi used force, which caused string removal from the throat and you all four accused had caught Devang Joshi. You, accused no. 3 - Irfan @ Ramesh Aalambhai had with intention to cause the death of Devang Joshi, inflicted blows of knife on the part of stomach, chest and throat and caused injuries. As the said deceased Devang Rameshbhai Joshi fell down at that time, the accused no. 1 - Farhin @ Shahin, accused no. 2 - Amjadkhan Haiderkhan Pathan and accused no. 7- Imtiyaz @ Mastan Aalambhai Parmar had compressed Devang Joshi on the ground in such a way that accused no. 3-Irfan @ Rakesh Aalambhai Parmar can blow knife on deceased Devang Rameshbhai Joshi and thus, the accused no. 3 had inflicted countless blows on stomach, chest, throat, hands, legs and on whole body of deceased Devang Joshi and cut his forefinger of left hand through knife, caused death of Devang Joshi and thus, all accused have committed an offence punishable under Section302 read with Section-34 of the Indian Penal Code and accused no. 1 to 8 have committed an offence punishable under Section-302 read with Section-120 (B) of the Indian Penal Code.

On the date, place and time mentioned above, the accused no. 1 to 8 had as part of preplanned conspiracy, killed deceased Devang Joshi and despite of knowing that all the accused have committed criminal offence, the accused with intention to save oneself from the punishment of law and to destroy the evidence of offence committed, the accused no. 4-Irfanahemad @ Kane Abdulkadar Ranrej with auto rickshaw no. GJ-1-AV2115 owned by him and accused no. 8-Vijay Mohanlal Chauhan with motorcycle owned by him, remained present over there and accused no. 5-Firoz @ Peepa Sattarbhai Rangrej, accused no. 6-Sikandarkhan @ Machchhi Niyamatkhan Pathan and accused no. 1 - Farhin @ Shahin remained present in the residential house of lucky duplex, thereafter, the accused no. 1 to 8 packed the dead body of deceased Devang Joshi in plastic jute cloth bag and placed it on the rear seat of auto rickshaw no. GJ-1-AV-2115 belonged to accused no. 4-Irfan Ahmed @ Kane Abdulkadar Rangrej. Accused no. 1 - Farhin @ Shahin and accused no. 2-Amjadkhan Haiderkhan Pathan sat on the passenger seat near the dead body of deceased Devang Joshi and accused no. 5-Firoz @ Peepa Sattarbhai Rangrej sat on driver seat and accused no. 4- Irfan Ahemad @ Kane Abdulkadar Rangrej drove autorickshaw.

Accused no. 7-Imtiyaz @ Mastan Aalambhai Parmar & accused no. 8-Vijay Mohanlal Chauhan did pilotage of the rickshaw by riding their motorcycle in front of it. While all the accused were going in autorickshaw to destroy the evidence of their criminal act by throwing dead body of deceased Devang Joshi in Sabarmati River near Flower Market on the corner of Sardar Bridge, at about 2. 00 o clock in the morning on 08. 05. 2006, accused no. 1 - Farhin @ Shahin was caught at Flower Market on the corner of Sardar Bridge with the dead body of Devang Joshi, accused no. 2, 4 and 5 escaped from rickshaw whereas, accused no. 7 and 8 absconded with their motorcycle. Accused no. 2- Amjadkhan Haiderkhan Pathan went to the scene of offence at Lucky Duplex, picked Hero Honda Motorcycle from there and dropped it opposite P. W. D. Store, Chandola Talav, Shahalam. Accused no. 3-Irfan @ Rakesh Alambhai Pathan and accused no. 6-Sikandarkhan @ Machchhi Niyamatkhan Pathan had washed the blood of deceased and thus, he destroyed the evidence. Accused no. 3 took left forefinger of deceased Devang Joshi and his mobile phone and absconded with intention to destroy the evidence. Thus, all the accused have committed an offence punishable under Section-201 read with Section-120 (B) of the Indian Penal Code.

Accused no. 2-Amjadkhan Haiderkhan Pathan was undergoing for the lifetime imprisonment at District Jail, Junagadh in connection with Maninagar Police Station, C. R. No. I-229/2000 under Section-302 of IPC and Section 135 (1) of the Bombay Police Act and was released on furlough for fourteen days on 5. 3. 2004 and after completion of furlough, he did not appear before jail authority. Likewise, accused no. 3-Irfan @ Rakesh Aalambhai Pathan was undergoing for imprisonment of 20 years (life time imprisonment) at the Central Jail, Ahmedabad in Danilimda Police Station, C. R. No. I-80/1998 under Section 302, 307 of IPC and was released on furlough for fourteen days on 14. 11. 2003 and after completion of furlough, he did not appear before the jail authority.

Thus, the accused no. 2 and 3 were the then convicted criminals on 7. 5. 2006 and both these accused had at or about 23 hours on 7. 5. 2006, as part of preplanned conspiracy with common intention to cause the death of deceased Devang Joshi, by causing his death, accused no. 2 and 3 have committed an offence punishable under Section 303 of IPC.

The accused no. 3-Irfan @ Rakesh Aalambhai Pathan, had breached notification of prohibition to keep arms of the Commissioner of Police, Ahmedabad City, by holding deadly weapon like knife, and had committed an offence punishable under Section-135 (1) of the Bombay Police Act.

Therefore, as these accused have committed aforesaid offences within the jurisdiction of this court, trial against all the said accused shall be conducted in this court.

Set my hands and seal of the court on this 28th day of November 2007.

Date:28. 11. 2007

Sd/- Illegible

(M. T. Acharya)

Additional Sessions Judge &

Presiding Officer,

Fast Track Court No. 6,

Ahmedabad (Rural),

District Court, Mirzapur,

Ahmedabad. "

3. In view of acquittal of accused nos. 2 to 8 under Sections 302, 120-B, 201 and 303 of IPC by giving benefit of doubt by learned trial Judge, an appeal was preferred by the State of Gujarat, in which delay of 71 days had occurred, which came to be condoned, but Division Bench of this Court vide oral order dated 14. 12. 2011 refused to grant leave by rejecting Criminal Misc. Application No. 10194 of 2011 and Criminal Appeal No. 910 of 2011 preferred under Section 378 of the Code of Criminal Procedure came to be dismissed.

4. At the outset, Shri Saiyed, learned counsel for the defence would contend that findings, reasonings and conclusion drawn by learned trial Judge, if carefully perused, learned trial Judge has not accepted any evidence qua acquitted accused. Even about murder of Devang, no evidence was found as to when, how and who committed the murder.

Almost all panchas of various panchnamas have turned hostile and simply because the appellant-original accused no. 1, a female convict was found with the dead body, it cannot be said that the prosecution has proved its case beyond reasonable doubt. Even the motive was alleged by the prosecution about nature of relationship of accused no. 1 with the deceased, and on three different occasions, she had gone for termination of her pregnancy for which none of the doctors supported the case of the prosecution and they include Dr. Kamini Patel, Dr. Kamlesh Jagvani and Dr. Hasinaben Didarbhai. Therefore, believing the case of prosecution qua present appellantoriginal accused no. 1 and not believing the case qua other acquitted accused under Section 302 read with Section 120 (B), 201 etc. and in absence of any corroboration or circumstances forming chain of events leading to the guilt of the accused, conviction order passed by learned trial Judge against present appellant deserves to be quashed and set aside.

4. 1 Learned counsel for the defence has taken us through entire evidence on record, which includes 58 prosecution witnesses and 56 documentary evidence and submitted a bare version of complainant, PW-2, Rajendrasing Chauhan about socalled confession of the accused and regarding history of crime would be hit by Section 25 of the Evidence Act and further absence of any scientific investigation barring postmortem report of the dead body, almost all panchas turning hostile and not supporting the case of the prosecution, conviction ordered by learned trial Judge deserves to be set aside and the appellant be set at liberty.

4. 2 Shri Saiyed, learned counsel for the defence has relied on the decision in the case of Krishna Govind Patil v. State of Maharashtra, 1963 AIR(SC) 1413, in support of his submission that in the case before the Supreme Court out of four persons charged under Section 302 read with Section 34 of IPC, three came to be acquitted and, it was held in the facts of that case, the fourth person cannot be convicted for having committed the offence along with one or more of the acquitted persons and appeal filed by the convict came to be allowed.

5. As against above, learned APP would contend that ordering acquittal of co-accused and co-conspirators, original accused nos. 2 to 8 under Section 302 and 120 (B) would not ipso facto result into acquittal of the present appellant and conspiracy is to be proved based on circumstances and such circumstances certainly emerge on record, if testimonies of prosecution witnesses viz. complainant, PW-2 Rajendrasing, is carefully perused in which mystery of crime was unfolded by the convict which gathered corroboration. Though panchas have turned hostile, the investigating officer has deposed about drawing of panchnamas and contents therein recorded.

Besides accused nos. 7 and 8 had criminal antecedents and were convicted of heinous crime but unfortunately due to lack of evidence qua them, it was resulted into acquittal and prima facie observations made by this Court in not granting leave to prefer appeal against acquittal under Section 378 (1) (4) of Code of Criminal Procedure will not have any bearing when circumstances so establish reveal that present appellant entered into conspiracy since the deceased, who having developed the relationship with the convict-present appellant refused to marry her. That she was found with dead body during night hours and by night squad of the police patrol party she was caught red handed and other accused escaped but collective appreciation of evidence so believed by learned trial Judge, which included injuries received by some of the accused including present appellant, reveal struggle by the deceased in an attempt to escape or save his life and, therefore, conviction is to be sustained. The manner in which crime was committed and repeated blows of knife, nature of injuries so deposed by the concerned doctor, who carried out postmortem, further strengthen the case of the prosecution leaving no room of doubt about involvement of present appellant, therefore, the impugned judgment of conviction warrant no interference in exercise of powers by this Court.

5. 1 She has relied on the decision in the case of Saju v. State of Kerala, 2001 1 SCC 378 [LQ/SC/2000/1708] , in support of her argument that merely because dismissal of appeal of one conspirator, who had given fatal blow to deceased, charge of conspiracy against co-accused cannot be deemed to have been proved. Likewise, acquittal of one conspirator would not entitle co-conspirator to acquittal and bereft or independent of proof or failure to convict the co-accused or co-conspirator under Section 120 (B) of IPC, will have no such bearing on conviction of other co-accused, if the prosecution remains successful in bringing sufficient material qua the co-accused. Therefore, the appeal deserves to be dismissed.

6. We have carefully gone through the record of the case and submissions made by learned counsel for the appellantconvict and learned APP vis-a-vis judgment and order of conviction recorded under Section 302, 120 (B) and 201 of the appellant-original accused no. 1 and acquitting original accused nos. 2 to 8 against which appeal filed by the State of Gujarat came to be dismissed by not granting leave vide oral order dated 14. 12. 2011 by this Court. We have been persuaded to accept the submissions made by learned counsel for the appellant-convict that the prosecution has failed to prove its case beyond reasonable doubt even qua the present appellantoriginal accused no. 1. Section 120- A and Section 120-B of IPC and Section 10 of the Evidence Act reads as under:-

"120-A. Definition of criminal conspiracy. --When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

120-B. Punishment of criminal conspiracy. --(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. "

Section 10 of the Evidence Act

"10. Things said or done by conspirator in reference to common design. Where there is reasonable round to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. "

7. We have been benefited by the decision in the case of Saju relied on by learned APP in which the Apex Court was confronted with the facts about conviction under Section 120 (B) and 302 recorded qua two accused by the trial Court which came to be confirmed by the High Court in appeal and out of which one of the appellant-accused preferred SLP before the Supreme Court which came to be dismissed. Based on above, it was contended by the respondent-State of Kerala that once the leave was not granted qua co-accused in the backdrop of charge proved under Section 120 (B) of IPC, appeal filed by the co-accused deserves to be rejected. While examining such contention in the backdrop of the case where no eye witness was available and to prove case of prosecution circumstantial evidence was appreciated in which the Apex Court exhaustively relied on law on conspiracy in the case of E. G. Barsay v. State of Bombay, 1961 AIR(SC) 1762, Kehar Singh v. State (Delhi Administration), 1988 AIR(SC) 1883, and Sardar Shardul Sing Caveeshar v. State of Maharashtra, 1965 AIR(SC) 682, and celebrated case of Mirza Akbar v. King Emperor, 1940 AIR(PC) 176, that Section 10 is an exception carved out in case of conspiracy and that the above Section is divided into two parts. It is held as under:-

"This section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the section comes into operation and it is material to note that this part of the section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120- A where it is provided when two or more persons agree to do, or cause to be done. This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the section is clearly established i. e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120- A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other. "

7. 1 Thus, even to apply second part, prosecution is duty bound to establish the first part viz. there exits a reasonable ground to believe that two or more persons have conspired to commit an offence or actionable wrong and upon satisfying this condition precedent, second part would come into play.

8. In the facts of this case, admittedly, as per the prosecution story, accused no. 1 was found in a rickshaw with dead body during late night hours of 7. 5. 2006 in which eight persons were arraigned as accused for charge of Section 302, 120-B, 201, 303 and 34 of IPC. Original accused no. 2, Amjadkhan alias Samir Haiderkhan Pathan, who had inflicted two to three knife blows was also accompanying accused no. 1 in a rickshaw with dead body along with other two accused out of which one escaped. That accused no. 1 caught hold of deceased Devang and accused no. 2 inflicted knife blows. That charge framed by the trial Court reveal accused no. 3 inflicted knife blows while in complaint such role was attributed to accused no. 2. The story unfolded about murder of Devang before police personnel is nothing but admission of crime by the accused. Absence of scientific investigation including that of sealing of muddamals and almost all panchas, PW-3, PW-5, PW-6, PW-7, PW-9, PW-10, PW-12, PW-13, PW-14, PW-15, PW16, PW-17, PW-18, PW-19, PW-20, PW-21, PW-23, PW-24, PW40, PW-46, PW-51, and PW-52 have turned hostile. To prove the nature of relationship of accused no. 1 with deceased, motive aspect came to be investigated for which some of the witnesses were examined and relevant important witnesses are PW-25, father of the deceased, about accused no. 1 having contact with his son on telephone. So far as PW-36, Dr. Jitendra Amratlal, who had examined accused no. 1 of having bruises on her finger in cross-examination, it was found that injury was simple. That PW-37, Dr. Kamini, PW-38 Dr. Kamlesh Jagvani do not identify the accused in the Court and were unable to state that accused no. 1 was the same person whose pregnancy was terminated by them on two different occasions. So is the case of PW-43, Dr. Hasinaben and even learned trial Judge has also not believed above witnesses. Thus, absence of motive particularly the prosecution having failed to prove meeting of minds or an agreement to do any criminal act by two persons and other co-accused, including those who have led an overt act of inflicting knife injuries and over-powering the deceased came to be acquitted by not believing the very set of evidence, we are unable to agree with the findings, reasoning and conclusion of learned trial Judge about guilt of the accused, a female convict, who remained in jail for five years before she was bailed out by this Court to sustain conviction so ordered under Section 302 read with Section 120-B and Section 201 of IPC. The judgment and order of conviction qua present appellant-original accused no. 1 deserved to be quashed and set aside.

9. For the foregoing reasons, this appeal is allowed. The impugned judgment and order dated 31. 1. 2011 passed by learned Sessions Judge, Ahmedabad (Rural), in Sessions Case No. 150 of 2006 is quashed and set aside so far as present appellant-original accused no. 1 is concerned and she is acquitted of all the charges levelled against her. Bail bond, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.