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2001 DIGILAW 291 (DEL)

STATE v. SIDDARTH VASHISTH @ MANU SHARMA

2001-03-13

R.C.CHOPRA

body2001
R. C. Chopra ( 1 ) THIS order shall dispose of Criminal Revision Petition Nos. 596/2000, 619/2000, 46/2001 and 47/2001, which are directed against order dated 23. 11. 2000 passed by learned Additional Sessions Judge in Case FIR No. 287/99 registered with P. S. Mehrauli, commonly known as "jessica Lal Murder Case". ( 2 ) IN Crl. R. 596/2000, the State prays to set aside the discharge of accused No. 1 Manu Sharma, accused No. 2 Vikas Yadav, accused No. 3 Amardeep Singh Gill, accused No. 4 Alok Khanna and accused No. 5 Amit Jhingan under Section 120-B read with Section 302, Indian Penal Code as well as the discharge of A-2 to A-5 for offence under section 302/34, Indian Penal Code. A further prayer is to set aside the discharge of accused A-4, a-5 and A-6 Shyam Sunder Sharma, who have not been charged for commission or any of the offence. Crl. R. 47/2001 has been filed by accused No. 2 Vikas Yadav with a prayer to discharge him of the offences under Sections 201,120-B and 34, Indian Penal Code. Revision Petition No. 46/2001 has been filed by accused No. 3 Amardeep Singh Gill @ Tony Gill with a prayer to discharge him of the offences under Sections 201 and 120-B, Indian Penal Code. Revision Petition No. 619/200 has been filed by accused No. 12 Raja chopra with a prayer to discharge him for the offence under Section 212, Indian Penal Code. ( 3 ) I have heard learned Counsel for the parties and perused to records. ( 4 ) THE facts, leading to filing of the above revision petitions, briefly stated, are that on the intervening night of 29th and 30/04/1999, a party was going on at tamarind Court Cafe, Qutub Colonnade, Mehrauli, New Delhi in which drinks were being served on payment basis. According to the prosecution, accused Manu sharma, Vikas Yadav, Amardeep Singh Gill @ Tony Gill, Alok Khanna and Amit jhingan (hereinafter referred to as A-1 to A-5 respectively) also reached this Cafe at about 11. 30 p. m. At about 2. 00 a. m. , A-1 asked a waiter to give him two drinks and on his refusal, he asked Malini Ramani, daughter of the owner of tile Cafe to get him a drink, but she also declined. 30 p. m. At about 2. 00 a. m. , A-1 asked a waiter to give him two drinks and on his refusal, he asked Malini Ramani, daughter of the owner of tile Cafe to get him a drink, but she also declined. On his insistence, she remarked that he could not have asip of drink even if he paid Rs. 1,000. 00 on which A-1 remarked that he could pay rs. 1,000/ - for a sip of her. It is alleged that thereafter A-1 asked Jessica Lal, deceased, to give him two drinks, but she also refused upon which A-1 took out a pistol from his pocket and fired one shot towards the roof and the second shot towards the deceased, which hit near her left eye. She fell down and later succumbed to her injury. On account of this firing there was commotion (Hafra Tafri) amongst the guests present in the Cafe and most of them started running away. According to the prosecution, a this juncture A-1, the main accused, who had fired the shots, was escorted out of the restaurant by his co-accused A-2 to A-5. After coming out of the cafe, A-1 walked away on foot whereas the remaining accused slipped away in a vehicle. ( 5 ) IT is alleged that A2, A-3 and A-4 reached the house of A-3 where A-1 also came later. There was exchange of telephone calls including some with A-5. The prosecution story is that before coming to Cafe also, there was exchange of telephone calls between them, which suggests that they had gone to the Cafe after hatching a conspiracy to murder deceased Jessica Lal. ( 6 ) PROSECUTION alleges that after the incident A-1 to A-4 re-assembled at the house of A-3 where they hatched a conspiracy to remove the Tata Safari belonging to A-1 from the place of occurrence. In furtherance of this conspiracy, A-2 and A-3 again went to the spot in the vehicle of A-4 and forcibly removed black Tata Safari of A-l from there inspite of resistance bypublic witness 54 Shravan Kumar. It is alleged that while the accused were taking away Tata Safari of A-1 from the place of occurrence, pw 54 Shravan Kumar gave a danda blow on account of which one glass pane of vehicle got broken. It is alleged that while the accused were taking away Tata Safari of A-1 from the place of occurrence, pw 54 Shravan Kumar gave a danda blow on account of which one glass pane of vehicle got broken. ( 7 ) IT is also alleged that before coming to the house of A-3 after the incident, a-1 had concealed his pistol near the place of incident and later on in furtherance of a conspiracy, A-1 and A-2 went to the said place and managed to retrieve the weapon of offence from there. This weapon of offence, according to the prosecution, was later handed over by A-1 to accused R. K. Sudan (hereinafter referred to as a- 10 ), who in turn handed it over to A-6, Shyam Sunder Sharma. The prosecution alleges that A-6 succeeded in causing disappearance of this weapon of offence. He is also alleged to have helped and supported A-10 R. K. Sudan to escape from India. A-7 Harvinder Chopra, A-8 Vikas Gill @ Ruby and A-9 Yog Raj Singh had allegedly harboured A-1 knowing or having reason to believe that he was wanted in connection with the offence. Accused No. 12 Raja Chopra is stated to have provided his car to A-1 for escaping from Delhi and reaching Chandigarh. The prosecution filed a challan under Section 173, CRIMINAL PROCEDURE CODE. against the aforesaid accused for the commission of offences under Sections 302/201/212, read with Section I20-B, Indian Penal Code, section 27 of the Arms Act as well as Section 302/34, Indian Penal Code. ( 8 ) LEARNED Additional Sessions Judge vide impugned orders held that A-1 should be charged under Sections 302, Indian Penal Code and Section 27 of the Arms Act. A-1 to a-3 were ordered to be charged under Section 120-B read with Section 201, Indian Penal Code for conspiracy and removal of the Tata Safari of A-l from the place of incident. A1, A- 2 and A-11 were ordered to be charged under Section 201 read with Section 34, Indian Penal Code on the allegations that the glass pane of Tata Safari was replaced after the incident. A7, A8, A-9 and A-12 were ordered to be charged separately under Section 212, Indian Penal Code for harbouring A1. A1, A- 2 and A-11 were ordered to be charged under Section 201 read with Section 34, Indian Penal Code on the allegations that the glass pane of Tata Safari was replaced after the incident. A7, A8, A-9 and A-12 were ordered to be charged separately under Section 212, Indian Penal Code for harbouring A1. Learned Additional Sessions Judge did not accept the prosecution request for charging A-1 to A-5 under Section 120-B, Indian Penal Code for commission of an offence under Section 302, Indian Penal Code for murder of the deceased Jessica Lal. Section 34, Indian Penal Code was also held to be not applicable against them for commission of the offence under section 302, Indian Penal Code. A-4 Alok Khanna and A-3 Amit Jhingan were discharged of all the offences. A-6 Shyam Sunder Sharma was also discharged of all the offences alleged against him. ( 9 ) MR. S. K. Saxena, learned Special Public Prosecutor, arguing for the State in crl. R. 596/2000 has strenuously urged this Court to order framing of charge under section 120-B, Indian Penal Code for commission of an offence under Section 302, Indian Penal Code against a-1 to A5. He has assailed the view taken by learned Trial Court that there were no grounds for framing of charge under Section 120-B, Indian Penal Code inasmuch as even if the evidence was to go unrebutted, these accused could not be convicted under Section 120-B, Indian Penal Code in relation to the murder of Jessica Lal. According to learned Counsel for the State, this approach of learned Trial Court was manifestly erroneous for the reason that at the stage of framing of the charge, the Court is not required to assess and appreciate the prosecution evidence on record to find out as to whether the evidence was sufficient or not for convicting an accused, if the evidence was to go unrebutted. According to him, law as it stands, in view of various pronouncements of the Apex Court, is that a charge against an accused can be framed if there is strong suspicion to connect him with the offence. According to him, at the stage of charge a probable defence of an accused cannot be looked into and the facts and circumstances brought on record by prosecution have to be considered in their totality and not in isolation. According to him, at the stage of charge a probable defence of an accused cannot be looked into and the facts and circumstances brought on record by prosecution have to be considered in their totality and not in isolation. If on the basis of some material, two views are possible, then the view favourable to the prosecution has to be taken at this stage. In support of his submissions, he relies upon judgments of the Apex Court in State of Maharashtra etc. V. Som Nath Thapa etc. , 1996 Crl. L. J. 2448, and Stree Atyachar Virodhi Parishad V. Dilip Nathumal Chordia and Another, 1989 (1) SCC 715 . ( 10 ) MR. Saxena submits that for proving an offence of conspiracy direct evidence is seldom available to the prosecution as dark deeds are done in darkness. He argues that existence of criminal conspiracy can be inferred from the circumstances, events and conduct of the accused prior to the offence, at the time of commission of the offence and subsequent to the commission of the offence. To argue that there existed a conspiracy between the aforesaid five accused for committing murder of Jessica Lal, he relies upon the judgments in Hardeo Singh V. State of Bihar and Others, 2000 Crl. L. J. 2978=iv (2000) SLT 733=11 (2000) CCR 218 (SC); ajay Agarwal V. Union of India and Others, AIR 1993 SC 1637 , and Kehar Singh and others V. The State (Delhi Administration), AIR 1988 SC 1883 . ( 11 ) LEARNED Counsel, in support of his submissions for framing of charge of conspiracy against A-1 to A-5, points out that the prosecution has placed on record enough material to show that the accused persons had met at the residence of A-3 before going to the restaurant, there was exchange of phone calls between them, a-1 was carrying a loaded pistol with him and recovery of empty shells and a live cartridge from Tata Safari of A-1 shows that the pistol was loaded on way to the restaurant in the presence of other accused. According to him, all these circumstances prior to reaching the venue of the incident suggest very strongly that there might have been a conspiracy between A-1 to A-5 to commit murder of Jessica lal otherwise they had no reason to go there when one of them was armed with a pistol. According to him, all these circumstances prior to reaching the venue of the incident suggest very strongly that there might have been a conspiracy between A-1 to A-5 to commit murder of Jessica lal otherwise they had no reason to go there when one of them was armed with a pistol. He further submits that presence of all the five accused at the spot is prima facie established and it is also established by statements of some witnesses that the deceased was not a stranger to them. He has read the statement of Shyan Munshi to show that A-3 Tony Gill was seen talking to the deceased sometime prior to the incident. He argues that had the refusal to serve drinks been the real cause of murder, then A-1 should have killed either the waiter, who had denied him a drink or Malini Ramani, who had not only denied a drink, but had exchanged unpleasant words also with A1. It is submitted that in me absence of a conspiracy and a firm resolve to kill Jessica Lal, A-1 had no reason to fire a second shot aiming towards her. Absence of any effort by A-2 to A-5 to prevent A-1 from firing a second shot at Jessica lal and thereafter omission to provide her help clearly suggest that they had come prepared to murder her. After the incident, all of them escorted A-1 out of the restaurant, which circumstance is also indicative of their plan to commit murder and then escape. His further contention is that even if it is not believed that the conspiracy was hatched at the residence of A-3 Tony Gill, a possibility is there that the conspiracy was hatched at Tamarind Cafe itself where A-1 to A-5 were present for sufficient time before killing the deceased Jessica Lal. ( 12 ) LEARNED Counsel for the State submits that even after commission of murder, the accused persons continued to collaborate and cooperate with each other in the matter of retrieval of the vehicle of A-1 from the spot, retrieval of the weapon of offence from the place where it was concealed by Al, refixing of a window pane in the vehicle of A1, meeting at the residence of A-3 Tony Gill, exchange of telephone calls between them and escape of A-1 from Delhi. According to him if A-2 to A-5 had not been co-conspirators of A1, they would have disassociated themselves from A-1 at least after the shooting incident and as such, their exists strong suspicion that they all were in conspiracy to commit the murder of deceased Jessica Lal. ( 13 ) MR. S. K. Saxena presses for invoking Section 34, Indian Penal Code also against A-2 to A- 5 for the commission of the offence under Section 302, Indian Penal Code on the ground that there was some time gap between the first shot fired by A-1 towards the roof and the second shot fired towards the deceased, but none of his co-accused tried to prevent a-1 from firing the second shot towards the deceased Jessica Lal, which resulted in her death. Their omission to prevent A-1 from firing the second shot, according to learned Counsel, is suggestive of their common intention. After shooting of the deceased by A1, the remaining four accused A-2 to A-5 did nothing to help the deceased by way of removing her to the hospital or calling the police and instead were more concerned to escort A-1 out of the restaurant safely. It is submitted that these facts and circumstances strongly suggest that if not conspiracy, they at least shared a common intention to kill Jessica Lal and as such Section 34 ought to have been invoked against them. ( 14 ) LEARNED Special Public Prosecutor contends that the charge under Section 212, Indian Penal Code also ought to have been framed against A2, A3, A-4 and A-5 inasmuch as in spite of their knowledge of commission of the offence by A1, they escorted him out of the restaurant. ( 15 ) LEARNED Counsel for the State has urged that Trial Court has seriously erred in discharging A-6 Shyam Sunder Sharma for the offence under Section 201, Indian Penal Code. He submits that A-6 Shyam Sunder Sharma was primarily responsible for the disappearance of the weapon of offence used by A-1 rendering him liable under Section 201, Indian Penal Code. According to the prosecution case, A-l had handed over the pistol to accused R. K. Sudan, who in turn had passed it on to A6, who was the real uncle of a1. Inspite of best efforts, the Investigating Agency could not trace out this weapon and, as such, material evidence has been made to disappear. According to the prosecution case, A-l had handed over the pistol to accused R. K. Sudan, who in turn had passed it on to A6, who was the real uncle of a1. Inspite of best efforts, the Investigating Agency could not trace out this weapon and, as such, material evidence has been made to disappear. Referring to statement of P. W. A. K. Dutt and the transcript of the taped telephonic conversation between p. W. A. K. Dutt and accused R. K. Sudan, it is submitted that there were sufficient grounds for charging A-6 under Section 201, Indian Penal Code. He submits that disclosure statement of A-1 led the Investigating Agency to discover the fact that the pistol was handed over by A-1 to accused R. K. Sudan and the transcript of the taped conversation shows that the weapon was passed on to A-6 by accused R. K. Sudan. The statement of A. K. Dutt recorded under Section 161, CRIMINAL PROCEDURE CODE. shows that A-6 was very anxious to ensure that accused R. K. Sudan moves out of India at the earliest because had R. K. Sudan been arrested by the police, he would have disclosed to them that the weapon of offence had been passed on to A6. The telephonic conversation between R. K. Sudan and P. W. A. K. Dutt, learned Counsel argues, was an extra-judicial confession of R. K. Sudan and, as such, admissible in evidence. ( 16 ) LEARNED Counsel for the accused besides arguing individual cases against the accused separately, have with one voice opposed and challenged the submissions of learned Counsel for the State for framing a charge under Section 120-B read with Section 302, Indian Penal Code or under Section 302 read with Section 34, Indian Penal Code against A-1 to a5. Learned Counsels argue that such serious charge cannot be and must not be framed against the accused unless the prosecution has sufficient material in support of the allegations. They submit that framing of a charge is not an empty formality inasmuch as an unwarranted and groundless charge, even if likely to fail, results in extreme harassment and hardship to an accused. They submit that framing of a charge is not an empty formality inasmuch as an unwarranted and groundless charge, even if likely to fail, results in extreme harassment and hardship to an accused. ( 17 ) IT is submitted that request of the prosecution for framing a charge under section 120-B read with Section 302, Indian Penal Code against A-l to A-5 for murder of deceased jessica Lal is absolutely unwarranted, baseless and without any material on record. It is argued that though motive is not essential to be brought on record for establishing the commission of an offence, but in a case of conspiracy, motive is very material for the reason that it provides basis to the accused persons for entering into a conspiracy. It is argued that in the present case, the prosecution has no material to show that A-1 to A-5 had any enmity or ill-will for planning murder of deceased jessica Lal. According to learned Counsel for the accused, the. mere fact that prior to going to Tamarind Cafe, accused were together or that they were present at the cafe or after the incident they escaped from the place of occurrence together, were not sufficient to draw an inference of criminal conspiracy. It is submitted that had the accused persons been in conspiracy to commit murder of Jessica Lal, they would not have waited for hours together at the Cafe before firing upon her. Moreover had the murder been preplanned and in furtherance of any conspiracy, the accused would not have allowed themselves to be seen by so many witnesses for such a long time and then shot at the deceased in full view of so many. Had there been a conspiracy, the accused, in normal course, would have ambushed her at a time and place where they could have found her alone and would have made every effort to conceal their identity. ( 18 ) IT is also argued that the telephonic conversations prior to the incident do not suggest any conspiracy as the accused might have been contacting each other for reaching the Cafe for having drinks and fun. In the absence of transcript of telephonic talks, no inference can be drawn that these telephonic calls were for hatching a conspiracy to murder the deceased. Their going to Cafe together and presence there are also not an incriminating circumstance. In the absence of transcript of telephonic talks, no inference can be drawn that these telephonic calls were for hatching a conspiracy to murder the deceased. Their going to Cafe together and presence there are also not an incriminating circumstance. The fact that A-1 was carrying a weapon is also not a circumstance warranting any inference that the accused had gone to the Cafe to commit any murder. It was a licensed weapon and as such, A-1 had every right to keep it with him for his own protection. ( 19 ) THE argument of the State that at the time of the incident, none of the accused tried to prevent A-1 from firing at the deceased nor gave any help to her and they all escaped from the place of incident together, is also not enough to draw any inference of conspiracy. Learned Counsel for the accused submit that evidence on record shows that there was no time-gap between the first and second shots so as to enable A-2 to A-5 to prevent A-1 from firing the second shot towards deceased jessica Lal. Like all others present at the spot, A-2 to A-5 also were taken aback and stunned. Since so many started running from the spot after the firing incident, A- 2 to A-5 also escaped from there, which also is not incriminating circumstance to suggest any conspiracy. It is argued that A-2 to A-5 had not escorted A-1 out of the restaurant and had merely escaped from there along with him. Had they been escorting A-1 out of the restaurant, they would not have left the spot in their cars leaving A-1 to manage his own self because the evidence of the prosecution itself shows that A-1 came back from the spot on foot. ( 20 ) IT is also submitted that the first shot was fired by A-1 towards roof, which also shows that there was no conspiracy at all to commit murder of deceased Jessica lal. Had there been any conspiracy, even the first shot would have been fired towards her. ( 21 ) IT is contended that even Section 34, Indian Penal Code is not attracted against A-2 to a-5. According to site plan, A-3, A-4 and A-5 were standing towards other side of the counter where the deceased Jessica Lal was standing. Had there been any conspiracy, even the first shot would have been fired towards her. ( 21 ) IT is contended that even Section 34, Indian Penal Code is not attracted against A-2 to a-5. According to site plan, A-3, A-4 and A-5 were standing towards other side of the counter where the deceased Jessica Lal was standing. It is, therefore, the prosecution case itself that these three accused were standing in the same direction in which fire was shot by A-1 and, as such, there was every chance that one of them could be hit by the said shot. It is submitted that the firing by A-1 was sudden and on account of such a trivial incident that A-2 to A-5 had no time or opportunity to prevent the firing. ( 22 ) IT is also argued that the prosecution has not been able to show any abnormal conduct on the part of the accused persons either before the incident, at the time of the incident or after the incident so as to suggest existence of a criminal conspiracy or common intention for murder of deceased Jessica Lal. The firing, according to the prosecution evidence itself, was quite sudden. Statement ofpublic witness 42 shiv Dass recorded under Section 161, CRIMINAL PROCEDURE CODE. categorically says "ke DUM US ladke NE PISTOL NIKALI", which negatives the existence of a common intention. It is also submitted that there was no untoward incident between the time of arrival of A-1 to A-5 at the Cafe and upto the firing incident and the prosecution has no witness to say that during this period, accused were sitting together or deliberating or behaving in a manner indicative of their plan to commit murder. ( 23 ) MR. Rajinder Singh, Senior Advocate appearing for accused No. 1 Siddharth vasisht has relied upon the judgments in State of Maharashtra, etc. V. Som Nath Thapa, etc. , (supra) and Niranjan Singh Karan Singh Punjabi, Advocate V. Jitendra Bhimraj Bijja and Others, AIR 1990 SC 1962 and argued that their does not exist any material on record to establish, suggest or infer a criminal conspiracy between A-1 to A-5. According to him. Section 10 of the Evidence Act can be invoked only when there are reasonable grounds to believe that two or more persons have entered into a conspiracy to commit an offence. ( 24 ) MR. According to him. Section 10 of the Evidence Act can be invoked only when there are reasonable grounds to believe that two or more persons have entered into a conspiracy to commit an offence. ( 24 ) MR. K. N. Balgopal, Advocate on behalf of A-2 Vikas Yadav has forcefully contested the prayer of learned Counsel for the State for framing a charge under section 302 read with Section 120-B, Indian Penal Code or Section 302 read with Section 34, Indian Penal Code or section 212, Indian Penal Code against A-2 and has prayed that the charge, as framed against A- 2 under Section 201, Indian Penal Code, Section 120-B, Indian Penal Code and Section 34, Indian Penal Code, be set aside and A- 2 be discharged. According to him, no charge whatsoever could be framed against a-2 for the reason that the statements of the prosecution witnesses against him cannot be relied upon inasmuch as he was not put to any Test Identification Parade. It is argued thatpublic witness 66 Dinesh Kumar, watchman at the residence of A-3 andpublic witness 54 Sharvan Kumar did not know A-2 from before and, as such, it cannot be held that a-2 was present at the house of A-3 after the incident or had taken any part in retrieval of Tata Safari of A-1 from the place of the incident. It is submitted that mere removal of Tata Safari of A-1 from the place of the incident does not fulfil the ingredients of Section 201, Indian Penal Code as removal of the vehicle from one place to another did not tantamount to disappearance, as referred to in Section 201, Indian Penal Code. Reliance is placed on a judgment in Batapa Bada Seth V. The State, 1987 (1) Crimes 365 . It is submitted that there is no evidence on record as to when and by whom the glass pane of Tata Safari of A-1 was changed. There was no evidence with the prosecution to render him liable under Section 212, Indian Penal Code even. It is thus prayed that the accused vikas Yadav be discharged of all the offences. ( 25 ) MR. Rajinder Singh Cheema, Advocate appearing on behalf of A-6 Shyam sunder has pleaded that there is no illegality or infirmity attached to the impugned order by which A-6 has been discharged of all the offences. It is thus prayed that the accused vikas Yadav be discharged of all the offences. ( 25 ) MR. Rajinder Singh Cheema, Advocate appearing on behalf of A-6 Shyam sunder has pleaded that there is no illegality or infirmity attached to the impugned order by which A-6 has been discharged of all the offences. He submits that there are absolutely no grounds for framing of a charge against A-6 under Section 201, indian Penal Code. According to him, prosecution has miserably failed to place on record any evidence that after the incident, A-1 and A-6 were in touch or that A-6 had done anything so as to render him liable under Section 201, Indian Penal Code. Statement of P. W. A. K. Dutt that A-6 wanted to deliver some money to A-10 R. K. Sudan so that he may go back to U. S. A. , is not at all an incriminating circumstance as the prosecution has not collected any evidence to show that A-10 R. K. Sudan was keen to go back to U. S. A. but his mother was not sick. Learned Counsel also assails taped conversation between P. W. A. K. Dutt and A-10 on the ground that firstly it is hit by Section 24 of the Evidence Act and secondly, it does not convey that A-10 had handed over the weapon of offence to A6. He also submits that the prayer of the State to charge A- 6 of all the offences is baseless. The argument of learned Counsel for the State that section 212, Indian Penal Code is attracted against A-6 on the ground that he helped A-10 to escape from India, is not covered by Section 212, Indian Penal Code as there is nothing on record to show that A-6 knew that A-10 was wanted for any offence. He also submits that there is no evidence with the prosecution to show that A-1 had handed over the weapon of offence to A-10. ( 26 ) ARGUING on behalf of A-3 Amardeep Singh Gill and A-4 Alok Khanna, Mr. He also submits that there is no evidence with the prosecution to show that A-1 had handed over the weapon of offence to A-10. ( 26 ) ARGUING on behalf of A-3 Amardeep Singh Gill and A-4 Alok Khanna, Mr. I. U. Khan, Advocate has fully supported the arguments on behalf of the other accused that in the present case, there is not even an iota of evidence with the prosecution to show that there was any conspiracy between A-1 and A-5 for commission of an offence under Section 302, Indian Penal Code nor there is any evidence to suggest that they shared any common intention for her murder. Learned Counsel arguing in Crl. R. 46/2001 on behalf of A-3 has prayed that he be discharged of the offences under Sections 201 and 120-B, Indian Penal Code. According to him, A-4 had no telephonic talks with A-1 either prior to the occurrence or after the occurrence and, as such, he had played no role at all and was not liable to be charged for any offence. There is no evidence against him under Section 212, Indian Penal Code even and the removal of vehicle of A- 1 from the spot did not attract Section 201, Indian Penal Code as it did not amount to causing disappearance of the evidence. He also submits that the allegation of escorting A- 1 out of the Cafe by A-2 to A-5 was not at all an incriminating proof at evidence as like many others, the accused were also moving out of the Cafe after the firing incident. It is submitted that mere fact that A-4 had given his car to A-3 for taking a-2 to the spot, does not link him with any offence under Section 201, Indian Penal Code read with section 120-B, Indian Penal Code because there is nothing with the prosecution to show that A-4 had given his car to A-3 knowing that the purpose of the visit was to remove the car of A-1 from the spot. Learned Counsel submits that the contention of learned counsel for the State that A-1 had loaded his pistol in his Tata Safari in the presence of other co-accused, is based on conjectures only. He has relied upon the judgments in (1) Century Spinning and Manufacturing Co. Ltd. V. The State of Maharashtra, 1972 Crl. Learned Counsel submits that the contention of learned counsel for the State that A-1 had loaded his pistol in his Tata Safari in the presence of other co-accused, is based on conjectures only. He has relied upon the judgments in (1) Century Spinning and Manufacturing Co. Ltd. V. The State of Maharashtra, 1972 Crl. L. J. 329, Stateof Karnataka V. L. Muniswamy and Others, AIR 1977 SC 1489 , AIR 1979 SC 366 , Madhavrao Jiwajirao Scindia and Another, etc. V. Sambhajirao Chandrojirao Ange and Ors. , AIR 1988 SC 709 , Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and Others, (supra), (6) L. K. Advani and Others V. Central Bureau of Investigation, (1997) 7 JCC 294=66 (1997) DLT 618=11 (1997) CCR 35, M/s. Pepsi Foods Ltd. and Another V. Special Judicial Magistrate and Others, 1998 Crl. L. J. 1=iv (1997) CCR 108 (SC)=vi (1998) SLT 102. He submits that at the stage of framing of charge, prosecution evidence is not to be taken as a gospel truth and judicial mind has to be applied as framing of a charge affects the personal liberty of an accused. He argues that ends of justice are higher than the ends of law and the Courts must evaluate the material on record before framing charge. Learned Counsel has also relied upon judgments in Vijyan V. State of Kerala, 1999 (3) SCC 54 =iii (1999) SLT 143=ii (1999) CCR 46 (SC), Saju V. State of Kerala, AIR 2001 (January) SC 175=iv (2000) CCR 214=viii (2000) SLT 177, Om Prakash, Etc. V. The State of Haryana and another, 1979 Crl. L. J. SC 857 and P. K. Narayanan V. State of Kerala, Crimes 1994 (3) SC 850 to contend that existence of a criminal conspiracy cannot be inferred on the basis of suspicions, surmises or conjectures. For arguing that no offence under section 201 read with Section 120-B, Indian Penal Code is made out against A-3 and A4, he relies upon the judgments in Jogta Kikla V. The State, AIR 1962 Gujarat 225 and Jit Singh and Others V. The State, AIR 1957 Punjab 278. ( 27 ) MR. For arguing that no offence under section 201 read with Section 120-B, Indian Penal Code is made out against A-3 and A4, he relies upon the judgments in Jogta Kikla V. The State, AIR 1962 Gujarat 225 and Jit Singh and Others V. The State, AIR 1957 Punjab 278. ( 27 ) MR. R. K. Naseem, Advocate appearing for accused No. 5 Amit Jhingan has opposed the prayer of the State for framing charges under Section 302 read with section 120-B and Section 34, Indian Penal Code and charges under Sections 212 and 201 read with section 120-B, Indian Penal Code against the accused on the ground that A-5 had not gone to the cafe in question with the other accused and had reached there separately. After the incident even, he had not left the spot along with the other co-accused. The only allegation against him is that at the time of firing, he was standing near the deceased along with A-3 and A-4 and at about 4. 00 a. m. on the asking of A-3 on telephone, he had gone to the house of A-3 in his Gypsy and thereafter he had taken A-1 and A- 2 to the Cottage Emporium for retrieval of the weapon of offence. The prosecution case is that after retrieval of the weapon of offence, he had dropped A-1 and A-2 back at the house of A-3. Learned Counsel for A-5 submits that there is no evidence whatsoever on record that A-5 knew A-1 prior to the incident and his mere presence in the party on that day does not suggest that he was in any conspiracy with A-1 to a-4 for commission of the offence of murder. He also argues that except disclosure statements, which cannot be read in evidence, there is nothing with prosecution to prove the visit of A-1 and A-2 to Handloom Emporium for retrieval of pistol. ( 28 ) RELYING upon a rough note alleged to be in the hand-writing of S. I. Sunil kumar, it is argued by learned Counsel for A-5 that Special Public Prosecutor had been guiding the investigations and on his behest, supplementary statements of somepublic witnesss were recorded. He submits that when such padding was being done by the Investigators, the statements under Section 161, CRIMINAL PROCEDURE CODE. cannot be taken as gospel truth. He submits that when such padding was being done by the Investigators, the statements under Section 161, CRIMINAL PROCEDURE CODE. cannot be taken as gospel truth. According to him, pistol of A-1 was already with the Investigators much before arrest of A-1 and, as such, the entire prosecution case in regard to disappearance of the weapon of offence and the conspiracy in respect of retrieval thereof is a crude fabrication. Referring to the site plan placed on record, learned counsel has argued that the story regarding its concealment near Cottage Emporium is preposterous on the face of it as A-1 could not have dared to pass in front of tamarind Cafe after the incident merely with a view to conceal his pistol near cottage Emporium. ( 29 ) MR. R. K. Garg, Advocate appearing on behalf of accused No. 12 Raja chopra has prayed for allowing his Crl. R. 619/2001 and discharging A-12 for the offence under Section 212, Indian Penal Code. It is submitted that A-12 has been charged under section 212, Indian Penal Code on the ground that he had sent his car from Chandigarh to help A- 1 to escape from Delhi, but a certificate issued by the Transport Department shows that this car had already been sold by A-12 to M/s. Piccadly Agro of which A-1 was also a Director. Therefore, in the absence of some other evidence, it cannot be inferred that A-12 had sent this car to Delhi for taking A-1 to some other place. It is also submitted that the prosecution has not placed on record any evidence whatsoever to show that A-12 knew anything about the involvement of A-1 in this offence and, as such, had any knowledge or reason to believe that he was an offender. Learned Counsel has relied upon a judgment in Sanjiv Kumar V. The State of himachal Pradesh, 1999 (2) SCC 288 =1 (1999) SLT 273=1 (1999) CCR 21 (SC ). Learned Counsel has relied upon a judgment in Sanjiv Kumar V. The State of himachal Pradesh, 1999 (2) SCC 288 =1 (1999) SLT 273=1 (1999) CCR 21 (SC ). ( 30 ) BEFORE adverting to the questions raised in the revision petitions for and against framing of charges under different provisions, it has to be clearly kept in view that a revisional Court must not interfere with the findings of a Trial Court on the ground of sufficiency or otherwise of the material on record so as to substitute its own opinion unless some patent perversity or glaring illegality is brought to the notice of the Court. The views expressed by Their Lordsdhips of the Supreme Court of India in Stree Atyachar Virodhi Parishad V. Dilip Nathumal Chordia and Another, 1989 (1) SCC 715 are the words of caution for the revisional Courts. ( 31 ) IF upon consideration of the material on record, documents and sorrounding facts and circumstances of the case the trial Judge considers that there are no sufficient grounds for proceeding against an accused he is under duty to order his discharge under Section 227 of the Code of Criminal Procedure. However, if upon the consideration of the material on record the Judge is of the opinion that there are grounds for presuming that the accused has committed the offence, he is under a legal obligation under Section 228 of the Code of Criminal Procedure to frame a charge against him and put him on trial. The law as to under what circumstances the Courts should pass an order under Section 228 of the Code for framing a charge and on what grounds a discharge should be ordered under Section 227 of the Code has been the subject matter of deep deliberations by the High Courts as well as Apex court in a number of cases. Leading judgments on the question are in Century spinning and Manufacturing Co. Ltd. V. The Slate of Maharashtra, 1972 Crl. Leading judgments on the question are in Century spinning and Manufacturing Co. Ltd. V. The Slate of Maharashtra, 1972 Crl. L. J. 329, malkhan Singh and Another V. The State of Uttar Pradesh, AIR 1975 SC 12 , State of Bihar V. Ramesh Singh, AIR 1977 SC 2018 , Union of India V. Prafulla Kumar Samal and another, AIR 1979 SC 366 , Rambilas Singh and Others V. State of Bihar, (1989) 3 SCC 605 , Niranjan Singh Karam Singh Punjabi, Advocate V. Jitendra Bhimraj Bijja and Others (supra), Stree Atyachar Virodhi Parishad V. Dilip Nathumal Chordia and Another (supra), state of Maharashtra, Etc. V. Som Nath Thapa, Etc. , 1996 Crl. L. J. 2448, Satish Mehra V. Delhi Administration and Another, 1996 (5) SCALE 523 =iv (1996) CCR 4 (SC) and Sumitra Banik V. State of West Bengal, (1999) 9 SCC 24 . ( 32 ) THE Apex Court has categorically laid down the law that the Courts at the stage of framing of charge even have to apply their judicial mind to the material placed on record with a view to find out as to whether there are grounds or not for presuming that the accused has committed the offence but at this stage neither the guilt of the accused has to be determined nor any elaborate enquiry is to be undertaken by delving deep into various aspects of the case. Probable defence of an accused is not to be looked into at this stage and if the scales between the accused having committed the offence or not committed that offence are evenly balanced the charge should be framed as at this stage the facts have to be taken at their face value only. ( 33 ) THE Apex Court in Niranjan Singh Karam Singh Punjabi, Advocate V. Jitendra Bhimraj Bijja, (supra), referred to a judgment reported in AIR 1980 SC 52 and quoted para 18 thereof which reads as under : "the standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Sections 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon material before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence. " the Court thereafter went on to make further observations as under "from the above discussion, it seems well settled that at the Sections 227-228 stage 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. 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. " ( 34 ) IN Satish Mehra V. Delhi Administration and Others, reported in Scale 1996 (5) 523, Their Lordships guided the subordinate Courts in the following words: "but when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pro- nounce the conclusion on a future date. We are mindful that most of the sessions Courts in India are under heavy pressure of work-load. If the sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself. " ( 35 ) IN Som Nath Thapa s case reported in (supra), the Apex Court again considered the question of framing of charge under Section 228 of the Code of criminal Procedure and laid down the legal position in following words : "the aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable conse- quence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the material brought on record by the prosecution has to be accepted as true at that stage. " ( 36 ) THIS Court, therefore, has to appreciate the submissions, made by learned counsel for the parties keeping in view firstly the scope of its powers under Section 397 of the Code of Criminal Procedure and secondly the principles governing the framing of charge under Section 228 of the Code as set out by the Apex Court in the judgments referred to above. ( 37 ) COMING to the prayer of the State in Revision Petition No. 596/2000 for framing charges under Section 120-B read with Section 302, Indian Penal Code against A-l to A- 5 and under Section 302 read with Section 34, Indian Penal Code against accused A-2 to A5, it is found that the prosecution case as laid before the Court is that these five young men after exchange of various phone calls landed at Tamarind Court Cafe at about 11. 30 p. m. where a party was going on and drinks even were being served on payment basis. Some of the leading models of Delhi including deceased Jessica Lal were working as bar-tenders. The accused A-l to A-5 remained there for a period of about 21/2 hours during which nothing objectionable happened. At about 2. 00 a. m. when the party was coming to a close, A-l first asked a waiter to get him drinks and on his refusal asked Maini Ramani, the daughter of the owner Beena Ramani but she also declined to oblige him. There was exchange of some unpleasant words even between the two and thereafter A-l allegedly asked the deceased Jessica Lal to provide him two drinks. On her refusal he took out a pistol from his pocket and first fired a shot towards the roof and the second shot towards her which stuck above her left eye and caused her fatal injury. On her refusal he took out a pistol from his pocket and first fired a shot towards the roof and the second shot towards her which stuck above her left eye and caused her fatal injury. The prosecution case is that on account of this firing there was complete commotion in the party and people started running. A- 1 to A-5 also escaped from the spot. It is alleged that A-l was being escorted out of the cafe by his other co-accused. It is also alleged that after leaving the Cafe, they again re-assembled at the house of A-3 and then planned retrieval of the black Tata safari of A-l from the spot as well as the pistol which A-l had allegedly concealed near Handloom Emporium. ( 38 ) THE prosecution prays for charging A-l to A-5 under Section 120-B for the offence of murder of deceased Jessica Lal and A-2 to A-5 under Section 302 read with section 34, Indian Penal Code also on the basis of following facts and circumstances placed on record: (A) Meeting between the accused at the house of A-3 before reaching the place of incident; (b) Exchange of telephone calls before reaching Cafe; (c) Carrying of a pistol to the spot by A-l; (d) Loading of the pistol by A-l on his way to the place of incident; (e) Circumstances suggesting that they knew the deceased prior to the incident; (f) Failure of A-2 to A-5 to stop or prevent A-l from firing the second shot towards the deceased; (g) Escorting out of A-l by his co-accused A-2 to A5; (h) Their escape from the spot together without doing anything to help the deceased, inform the police or to suggest that they had disassociated themselves from A1; (i) Meeting again at the house of A-3 and planning to retrieve the Tata safari of A-l from the spot; (j) Exchange of telephonic calls after the incident; (k) Retrieval of the weapon used in the offence; and (l) Harbouring A-l and helping him to escape from Delhi. ( 39 ) LEARNED Additional Sessions Judge for the reasons given in para 22 of the impugned order declined to charge A-l to A-5 under Section 120-B of Section 302 or Sections 302/34, Indian Penal Code. ( 39 ) LEARNED Additional Sessions Judge for the reasons given in para 22 of the impugned order declined to charge A-l to A-5 under Section 120-B of Section 302 or Sections 302/34, Indian Penal Code. ( 40 ) THERE is no doubt about the legal proposition that for proving a criminal conspiracy prosecution is seldom in a position to place before the Courts any direct evidence. Conspiracies are hatched in secrecy and as such are usually proved by circumstantial evidence alone. However, the law is well settled that for establishing a criminal conspiracy the prosecution must place on record some connecting link or connecting evidence of meeting of the minds of the conspirators for achieving a particular object. Motive may not be important for proving a criminal offence where ocular evidence is available, but in the case of a conspiracy, motive provides the basis for joining of hands by the conspirators. The facts relevant for inferring a conspiracy and kind of evidence required to be placed before the Courts were discussed in detail by Their Lordships of the Supreme Court in the judgments reported in Hardeo Singh V. State of Bihar and Others,2000 Cri. L. J. 2978, Rajesh Govind Jagesha V. State of Maharashtra, 2000 Cri. L. J. 380=iv (2000) SLT 733, State V. Nalini and- Others, (1999) 5 SCC page 253=iv (1999) SLT 402=11 (1999) CCR 100 and Kehar singh and Others V. The State (Delhi Administration), AIR 1988 SC page 1883. The ingredients of Section 34, Indian Penal Code were discussed in 2000 Cri. L. J. 380 (supra ). ( 41 ) IN me light of the principles governing the framing of a charge under section 228 of the Code of Criminal Procedure and the evidence required for proving the offence under Section 120-B, Indian Penal Code and common intention under Section 34, Indian Penal Code, this Court is of the considered view that the prosecution has not at all succeeded in placing on record any material on the basis of which the Court can come to a conclusion that there are grounds to presume that A-l to A-5 hadentered into a conspiracy. There is nothing on record to entertain a suspicion even that the murder of deceased Jessica Lal was in pursuance of any criminal conspiracy or in furtherance of any common intention between A-l to A5. There is nothing on record to entertain a suspicion even that the murder of deceased Jessica Lal was in pursuance of any criminal conspiracy or in furtherance of any common intention between A-l to A5. The scales weighing the material on record are not evenly balanced but are clearly tilted in favour of the accused for the reason that for entertaining a suspicion even the Court must have some material on record. Baseless suspicions, imaginary inferences and groundless conjectures are to be discarded by a discerning judicial eye. ( 42 ) THE reasons for the above conclusions are that the accused A-1 to A-5 are not shown to be having any ill-will, motive or reason for the murder of deceased jessica Lal. Their meeting and telephonic talks before reaching Tamarind Court cafe, where the incident took place are not shown to be for hatching a conspiracy. The circumstances suggest that they were only planning an evening for fun and frolic. The carrying of a loaded pistol by A-l to the spot is also not suggestive of any criminal design because it was a licensed pistol and he had every right to keep it on his person for his own defence. Even if his co-accused knew that he was carrying a loaded pistol, although there is no cogent evidence on this point, they had no reasons to panic or doubt his intentions because it was not an unlawful arm. There is no ground to presume that pistol was loaded on way to Cafe in the presence of a-2 to A5. A-l to A-5 reached the place of incident at about 11. 30 p. m. whereas the firing took place at about 2. 00 a. m. There is nothing with the prosecution to show that during these two and a half hours the conduct of the accused in any way suggested a plan to kill Jessica Lal. Rather the prosecution story itself shows that the firing took place suddenly on account of refusal of drinks to A-l. Had the accused been in. conspiracy to murder Jessica Lal, they would not have remained at the spot for about two and a half hours before killing her so as to expose themselves to the eye of persons present in the party. conspiracy to murder Jessica Lal, they would not have remained at the spot for about two and a half hours before killing her so as to expose themselves to the eye of persons present in the party. Moreover had there been any conspiracy A-l would not have fired inside the restaurant and in the presence of hundreds of people inviting abundant ocular evidence against him and his co-accused. He could have waited for the time and opportunity when she could be found alone either going out of the Cafe or on her way to her house so that the offence could he committed in secrecy. Therefore, the case as laid is suggestive of absence of conspiracy and not existence of a criminal conspiracy. ( 43 ) THE subsequent conduct of the accused persons in escaping together or thereafter meeting at the house of A-3 to plan retrieval of the car or the weapon of offence or the harbouring of A-l is also not suggestive of any conspiracy to murder. Support to A-l after the incident may render the accused liable for different offences but not at all for conspiracy under Section 120-B, Indian Penal Code read with Section 302, Indian Penal Code. ( 44 ) THE prosecution evidence as placed on record does not suggest the sharing of common intention even as required under Section 34, Indian Penal Code for the murder of deceased Jessica Lal. A perusal of the statements of the eye-witnesses, site-plan and other material on record clearly suggests that the firing was sudden. There is nothing on record to suggest that between first and second shots there was enough time gap so as to enable A-2 to A-5 to prevent or over-power A-l from firing a second shot. A-2 to A-5 could not have even anticipated that a second shot would be fired towards deceased Jessica Lal. In the statement ofpublic witness 42 Shiv Dass recorded under section 161, CRIMINAL PROCEDURE CODE. it has clearly come that A-l had at once taken out his pistol and fired. A-2 to A-5 could not have even anticipated that a second shot would be fired towards deceased Jessica Lal. In the statement ofpublic witness 42 Shiv Dass recorded under section 161, CRIMINAL PROCEDURE CODE. it has clearly come that A-l had at once taken out his pistol and fired. One factor which goes very much against the charge under Section 34, Indian Penal Code is the statements of the witnesses as well as the site-plan of the place of incident, which show that at the time of firing A-l was towards one side of the bar and his co-accused a-2 to A-5 were towards the other side and there was counter in between. A3, A-4 and A-5 were standing near the deceased. It shows that the bullet fired by A-l was in the direction of not only deceased Jessica Lal but his friends A3, A-4 and A-5 also who were standing near her. Had there been any common intention between A-1 and his co-accused present at the spot, he could not have fired in the direction where his friends were also standing inasmuch as the bullet could have hit any one of them. Since it is shown that A-l was on the other side of the counter and his other co- accused were on the other side thereof, there was no chance for them to prevent A- 1 from firing a second shot towards deceased Jessica Lal. There is no act of commission or ommission attributable to A-2 to A-5 to invoke Section 34, Indian Penal Code against them. ( 45 ) THE Court is, therefore, of the considered view that the facts, material and circumstances placed on record by the prosecution do not at all suggest that the firing was as a result of any criminal conspiracy between A-l to A-5 or they shared any common intention attracting Section 34 of the Indian Penal Code. Even if A-3 knew Jessica Lal from before and was found talking to her some time between 11. 30 p. m. and 2. 00 a. m. it is not at all a circumstance for presuming any conspiracy or common intention kill her because nothing has come on record that any of the accused had any motive or ill-will for killing her. 30 p. m. and 2. 00 a. m. it is not at all a circumstance for presuming any conspiracy or common intention kill her because nothing has come on record that any of the accused had any motive or ill-will for killing her. The Trial Court, therefore, had rightly taken the view that no charge under Section 120-B read with Section 302, Indian Penal Code or Section 302 read with Section 34, Indian Penal Code could be framed against A-l to A5. ( 46 ) THE State is highly aggrieved by the discharge of accused No. 6 Shyam sunder and prays for framing of charges under Sections 201 /212, Indian Penal Code against him. According to learned Counsel for the State, the learned trial Judge has failed to appreciate the material on record which strongly suggests that the weapon of offence i. e. pistol of A-l was handed over by A-l to A-10 R. K. Sudan (P. O.), who in turn handed over the same to accused No. 6 Shyam Sunder, uncle of Al. It is submitted that in view of the fact that the weapon of offence could not be recovered at all by the prosecution charges under Section 201, Indian Penal Code and under Section 212, Indian Penal Code for helping A-10 R. K. Sudan for moving out of India in spite of knowledge or reason to believe that he was wanted for an offence are required to be framed against A6. Learned Counsel for the State has argued that the disclosure statement made by A- 1 led to the "discovery of the fact" that after the incident the weapon used in the offence was handed over by A-l to A-10 R. K. Sudan. The statement ofpublic witness Ashok kumar Dutt and the tape recorded conversation between A. K. Dutt and accused r. K. Sudan raise strong suspicion against A-6 that the weapon of offence was handed over to him by A-10 R. K. Sudan and thereafter A-6 gave him some money and arranged that he left India without any delay. It is submitted that if A-10 had fallen into the hands of the police, he would have disclosed that he had handed over the weapon to A-6 and then it would have been possible for the police to effect the recovery thereof. It is submitted that if A-10 had fallen into the hands of the police, he would have disclosed that he had handed over the weapon to A-6 and then it would have been possible for the police to effect the recovery thereof. He submits that weapon of offence was very material in this case as it was a licensed weapon and if bullets fired at the spot could be linked to this weapon it would have been a clinching piece of incriminating evidence against Al, which the prosecution has been deprived of on account of non-recovery of the weapon. ( 47 ) MR. Rajinder Singh Cheema, learned Counsel for A-6 has controverted the submissions made by learned Counsel for the State and has opposed the prayer for framing any charge against A-6 on the ground that in the absence of the recovery of the weapon of offence the disclosure statement of A-1 cannot be considered. It is pointed out that the financial assistance given by A-6 to A-10 for going back to USA, even if believed, does not show that A-6 knew the. involvement of A-10 in anyoffence. It is also argued that taped conversation betweenpublic witness A. K. Dutt and A-10 is hit by Section 24 of the Evidence Act. He submits that prosecution has not placed on record anything to show that the mother of A-10 was not sick and it was for that reason only that A-6 had given him financial help for going back to USA immedi- ately. ( 48 ) AFTER considering the disclosure statement of A1, the statement under section 161, CRIMINAL PROCEDURE CODE. ofpublic witness A. K. Dutt and the transcript of the telephonic conversa- tion between A. K. Dutt and A-10 R. K. Sudan, lam of the considered view that there are good and sufficient grounds for holding that a strong suspicion exists against A- 6 for charging him under Section 201, Indian Penal Code as well as 212, Indian Penal Code. The disclosure statement of A-l might not have led to the recovery of the weapon of offence, but it certainly led to the discovery of the fact that the weapon of the offence had come into the hands of R. K. Sudan, which is corroborated by the taped telephonic talk between A. K, Dutt and A10. The disclosure statement of A-l might not have led to the recovery of the weapon of offence, but it certainly led to the discovery of the fact that the weapon of the offence had come into the hands of R. K. Sudan, which is corroborated by the taped telephonic talk between A. K, Dutt and A10. This taped telephonic conversation suggests at least primafacie that A-6 knew as to where the weapon of offence had gone. A-10 who had left India could not possibly take it out of India and as such the only person in whose contact he was before leaving India was A-6 with whom he spent some time at manali also after receiving the weapon from A-l at Delhi. The over-anxiety demonstrated by A-6 to see that A-10 goes out of India and the financial support given by him are suggestive of his apprehension that in case A-10 gets arrested by the police he may disclose the whereabouts of the weapon of offence and the role played by A-6 in the whole transaction. The telephonic talk betweenpublic witness A. K. Dutt and accused No. 10 R. K. Sudan does not appear to be hit by Section 24 of Evidence act inasmuch as inducement even if any was not proceeding from a person in authority. A-10 did not know even that this telephonic call was being recorded by the police. Therefore, I am of the considered view that there are good and sufficient grounds for framing a charge under Section 201, Indian Penal Code against A6. He also ought to have been charged under Section 212, Indian Penal Code for the reason that the material on record clearly suggests that he had helped A-10 R. K. Sudan to move out of India knowing that he was also likely to be arrested in this case inasmuch as he had helped A-l regarding disappearance of weapon of offence which was a material piece of evidence for the prosecution. ( 49 ) THE prayer of the State that A-2 to A-5 should have been charged under section 212 of the Indian Penal Code for harbouring A-l as they had escorted him out of the restaurant cannot be accepted. The statements of the witnesses recorded by the prosecution do not at all suggest that A-2 to A-5 had given any assistance or help to a-l for escaping from the place of incident. The statements of the witnesses recorded by the prosecution do not at all suggest that A-2 to A-5 had given any assistance or help to a-l for escaping from the place of incident. The statements ofpublic witness Bina Ramani and some other witnesses merely show that after the shooting incident, when there was utter commotion in the restaurant, A-l as well as A-2 to A-5 simply headed towards the exit gate and thereafter left the spot. Some of the witnesses have even used the term "khisak gaye" which does at all suggest that A-l was harboured in terms of section 52 (a) of the Indian Penal Code Moreover, the prosecution case itself is that after the shooting incident A-1 was left alone outside the Cafe whereas his other co-accused moved away in their own vehicles. A-l had to come to the house of A-3 on foot leaving his own vehicle at the spot. This circumstance negatives the prosecution allegation that A-l was harboumed by A-2 to A-5 in the matter of escaping from the spot. Thus the learned trial Judge was justified in not framing a charge against a2 to A-5 under Section 212 of the Indian Penal Code. ( 50 ) LEARNED Counsel for the State has further contended that A-4 also ought to have been charged under Section 120-B read with Section 201, Indian Penal Code on account of his role in the retrieval of the Tata Safari of A-l from the spot. The prosecution evidence strongly suggests that a conspiracy for the removal of Tata Safari from the spot was hatched at the residence of A-3 where A-4 had also come. It is true that A-4 did not accompany A-2 and A-3 to the spot for the removal of Tata Safari but the prosecution evidence shows that he had provided his own Tata Safari to them for the purpose. In view of the fact that A-4 had seen A-l shooting at the spot, had reached the house of A-3 after the incident and thereafter had given his vehicle also to A-2 and A-3 for the removal of Tata Safari of A-l from the place of incident raises a strong suspicion against him that he was also a party to the conspiracy and as such he ought to have been charged under Section 120-B read with Section 201, Indian Penal Code. The submissions of learned Counsel for the accused that there are no grounds at all for charge under section 201 read with Section 120-B of the Indian Penal Code are primarily based upon legal argument that mere removal of the Tata Safari of A-l from the place of incident to some other place did not attract Section 201, Indian Penal Code. It is argued that Section 201 of the indian Penal Code is attracted only when a person knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of an offence to disappear with the intention of screening offender from legal punishment. It is. contended that "removal" does not amount to "disappear" as referred to in Section 201 of Indian Penal Code. According to him, mere removal of the vehicle from one place to another did not make the vehicle disappear and as such no charge ought to have been framed in this regard.