1 S.B. CRIMINAL REVISION PETITION NO.821/2006 DATE OF ORDER : 19.8.2008 HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr.R.K.Charan, for the petitioner. Mr.L.R.Upadhyaya, Public Prosecutor. Mr.Pradeep Shah, for complainant. 1. This is a revision against the order of the Addl.Sessions Judge (FT) No.1, Udaipur dt.3.8.06 in Sessions Case No.98/06, whereby he has ordered to frame charge against the petitioner Narayan Singh for the offence u/s.302 r/w 34 IPC on the basis of the documents produced by the police u/s.173 CrPC for having committed the murder of Girdhari Bhandari on 11.7.2000 at 10 PM at Udaipur. In F.I.R., lodged by the brother of deceased viz; Sanjay Bhandari, it was alleged that two persons came in a Tata Sumo and they fired at his brother Girdhari Bhandari and he had seen the faces of both the persons. On the basis of this report, a case u/s.302 r/w 34 IPC was registered and after investigation, the challan was filed against both the accused. Learned trial Judge framed charges against both the accused, who pleaded not guilty. The trial of accused Mukut Singh was held separately and it is reported that he has been acquitted by the Addl.Sessions Judge (FT) No.1, Udaipur vide his judgment dt.26.10.07 passed in Sessions Case No.98/06 “State vs Mukut 2 Singh” but the trial of petitioner Narayan Singh was stayed by the order of this court dt.13.9.06. 2. It has been contended by the learned counsel for the petitioner that principal accused Mukut Singh to whom the informant Sanjay Bhandari identified, has been acquitted, therefore, no case is made out against the present petitioner Narayan Singh because he was not put for identification parade during investigation. Secondly, it is contended that he was implicated on the basis of the statement of Bharat Raj and Madan Lal recorded u/s.161 CrPC. Bharat Raj has simply said that accused Narayan Singh told him that he will sometime kill Girdhari. Madan Lal has stated that after the murder of Girdhari, he received a wireless message from Narayan Singh that the work has been done. According to the learned counsel, except these two statements, there is no other incriminating evidence to connect the present accused Narayan Singh for the offence u/s.302 r/w 34 IPC. He has further submitted a certified copy of the statement of Madan Lal recorded during trial. He has been examined as P.W.8 in which he has denied his earlier police statement about accused Narayan Singh with regard to the wireless message. 3 3. Per contra, learned Public Prosecutor and learned counsel for the complainant have submitted that the evidence of these two witnesses is sufficient for the purpose of framing charge against the present petitioner. 4. In my view, when the principal accused Mukut Singh has been acquitted by the trial Court and the implication of present petitioner Narayan Singh is only on the basis of the statement given by Madanlal during investigation that he received a wireless message from the petitioner, which has been disowned by the witness during trial, then there is no link evidence to implicate the present petitioner. In this regard, I find support from the law cited by the learned counsel for the petitioner in Yogesh vs. State of Maharashtra reported in 2008(3) CJ(SC) Cr. p.733, wherein five other co accused were discharged, as there was no sufficient evidence of hatching conspiracy by petitioners. The Hon'ble Supreme Court observed that even if the circumstances relied upon by the prosecution are accepted in entirety, it only creates a suspicion of motive, which is not sufficient to bring home an offence of murder. 5. The facts of the present case are not only similar but even more suspicious to bring home the offence u/s.302 IPC against accused Narayan Singh, when the basis of the statement itself 4 has been washed away during trial of co-accused Mukut Singh. 6. Consequently, this revision petition is allowed and the charge framed against the petitioner Narayan Singh by order of the Addl.Sessions Judge (FT) No.1, Udaipur dt.3.8.06 for the offence u/s.302 r/w 34 IPC is quashed and he is discharged by virtue of the provisions of Section 227 CrPC. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS