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Judgment
The applicant has filed the present revision petition against the order dated 06/01/2018 passed in Session Trial no. 280/2016 by Special Judge, ( under SC & ST Act ) Ratlam, whereby the trial Court has framed the charges against the applicant under sections 120-B and 212 of IPC.
2 The prosecution story in a nutshell is that on 07/11/2016 at about 20.30 pm, complainant Dharmendra Chawada along with his friends Durgesh, Daulat Chawada, Anand Chawada and Dharmesh @ Kalu Anda were smoking at the cremation area situated at Rajeev Nagar, Ratlam. At the same time, co-accused Ankit, Rahul and two other unknown persons came there by motorcycle and taunted in filthy language to the complainant. When they stopped them, they started inflicting injuries to Anand, Dharmesh @ Dharmendra @ Kalu Anda and Daulat Chawada by means of knife, due to which, they succumbed on the spot. Complainant Dharmendra Chawada lodged FIR at police station — Industrial Area, Ratlam and the police registered the offence under sections 294 and 302 read with 34 of IPC against the co-accused persons. During investigation, the police arrested the co-accused persons and it came to know that after the incident, the applicant harbored the co-accused persons with intention to screening them from legal punishment even by knowing the fact that they have committed murder. Then, the police arrested the applicant in relation to the present crime and recovered the knives and mobilephones of the co-accused persons from his house. After completion of investigation, the charge-sheet has been filed before the trial Court.
3 Learned trial Court after perusal of the entire material on record by the impugned order, came to the conclusion that prima-facie, the charge under section 212 of IPC as well as section 120-B of IPC is made out against the applicant. Being aggrieved by the impugned order, the applicant has preferred the present revision petition.
4 Learned counsel for the applicant submitted that no specific allegation has been levelled against the applicant for commission of the offence mentioned above. The applicant was not present at the place of the incident. There is no allegation against him that he has inflicted any injured on the person of the deceased. Only allegation against the applicant is that after the incident, the co-accused persons had taken shelter at his home situated at Ujjain and kept the knives and mobilephones inside his home. There is no evidence on record to show that the applicant was in any manner connected with the co-accused persons on mobilephone or the co-accused persons have been arrested from the house of the applicant. In these circumstances, no offence under section 212 and 120-B of IPC is made out against the applicant.
5 Per contra, learned counsel for the respondent / State supported the reasons adopted in the impugned order and submitted that there is no reason to interfere with the same.
6 I have considered the rival contentions advanced by both the parties and have perused the records
7 Before adverting to the merits of the case, it will be appropriate for this Court to first discuss the law relating to the criminal conspiracy. Hon'ble Supreme Court in the case of Kehar Singh and Ors. v. The State (Delhi Administration), AIR 1988 SC 1883 at p. 1954, has observed as under :
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of the two persons is necessary. Nor it is neccessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other materials. (See : State of Bihar v. Parma's, (1986) Pat LJR 688). 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 actions, 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, so long as it is known that the collaborator would put the goods or service to an unlawful use. (See :
State of Maharashtra v. Som Nath Thapa, JT (1996) 4 SC 615).
8 In the case of Ajay Agarwal v. Union of India and Ors.,reported in JT (1993) 3 SC 203, it was held as under:
8.....It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements : (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must "Charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathem :
'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means.
9 In the case of Yash Pal Mittal v. State of Punjab , reported in [1997} 4 SCC 540, it was held that :
The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators.'
In Mohammad Usman Mohammad Hussain Manias and Ors. v. State of Maharashtra, [1981] 2 SCC 443, it was held that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication.
10 In the context of the above observations by Hon'ble Supreme Court, now the facts of the present case are required to be discussed.
11 The contentions canvassed by the learned counsel for the applicant though are attractive at first blush; however, the same deserves to be repealed for the reasons stated below. Firstly, the arguments that the applicant was not present at the place of incident and there is no evidence on record to show that the applicant was in any manner connected with the co-accused persons on mobilephone prior to or during the incident, are in the nature of defence that can only be considered at the stage of trial. Thus, the first contention of the applicant fails. Secondly, it was contended that the applicant has been implicated merely because knives and mobilephones of the co-accused persons were lying with the applicant and recovered from his house.
Again, the same is in nature of a defence and this Court, at this stage can not venture into the merits of the case. At the present, this Court is only considered with the fact that whether the ingredients of the offences charged against the applicant, in the light of the allegation levelled, or prima facie made or not ?. Thus, on second count as well as, this application fails. Thirdly, another arguments were raised that the applicant is not named in the
FIR. Neither he was present on the spot at the time of the incident, nor any allegation against him that he has inflicted any injuries to the deceased persons. From perusal of the documents, it reveals that after the incident, the co-accused persons reached the house of the applicant and he, knowing the fact that they had committed murder, in order to screening them from legal punishment, harbored them at his house, therefore, the charge for commission of the offence under section 212 of IPC is clearly made out against the applicant. The mobilephones of the co-accused persons and the knives used during murder of the deceased persons were also found at the house of the applicant, therefore, it cannot be said that the offence under section 120-B of IPC is not made out against the applicant.
12 From the aforesaid discussions, it is hereby made clear that in the present case, the arguments raised above are in the nature of defence, which cannot be considered at the stage of framing of charge. In this regard, the Hon'ble Supreme Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in 2009 (16) SCC 605 , wherein following observation has been made as under :-
“25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and 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 or offences.
For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76).”
13 Thus, on the cumulative above facts and law laid down, the instant petition is hereby dismissed.