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2006 DIGILAW 1403 (MP)

Thakku Singh v. State of M. P.

2006-12-07

RAKESH SAKSENA

body2006
ORDER 1. Applicant has filed this revision against the order dated 12.9.2006, passed Special Judge, Tikamgarh, in Sessions Trial No. 144/06, framing the charge against the applicant for the offence under section 120-B read with section 394/397 of IPC. 2. Learned counsel for the applicant submits that since there is absolutely no legal evidence against the applicant, learned trial Court has committed serious error in framing the charge against the applicant. 3. According to prosecution, on 25.10.2005, when complainant Umesh @ Chhuttan Asati was going in a bus from Tikamgarh to Ghuara, District Chhatarpur, two accused persons, who were in the bus, on the point of Katta, robbed his bag containing Rs.2,15,000/-. It is said that those accused caused injuries to complainant by Butt of the Katta and also to others, by tiring the same. Report of the incident was lodged on the same day just after about 45 minutes of the occurrence, at Police Station Badagaon. 4. During investigation, co-accused Khillan son of Kanhai and Balli Yadav @ Baliram son of Mulua were arrested. In their memorandum, recorded under section 27 of the Evidence Act, both the accused confessed before the police that they had planned about the commission of aforesaid robbery in the house of Bhakti Tiwari alongwith applicant and some other persons. On the information furnished by those accused persons, the looted property was recovered. Applicant was arrested on 22.11.2005 and on his information a motorcycle was seized. In the memorandum given by applicant, it was disclosed that he had carried accused Balli and Khillan on the motorcycle from Ghuara to Purani Tekri Road and that the incident occurred in the bus. 5. Learned counsel for the State submits that in the memorandum recorded under section 27 of the Evidence Act, at the instance of aforesaid three accused persons, it has been clearly mentioned that applicant and other accused persons had hatched conspiracy and that the applicant had carried other accused persons to the road from where they had boarded the bus. On the other hand, learned counsel for the applicant submits that the evidence of confession by the accused persons to police is inadmissible. On the other hand, learned counsel for the applicant submits that the evidence of confession by the accused persons to police is inadmissible. Mere recovery of a motorcycle at the instance of applicant does not make out any incriminating circumstance against the applicant because there is no evidence on record to indicate that the said motorcycle alleged to be seized from the applicant was in any manner used in commission of the offence. Similarly, the evidence of confession in police custody, admitting the conspiracy with other accused persons is also inadmissible in evidence. 6. I have perused the case diary as well as challan papers containing the aforesaid memorandums and the statements of witnesses recorded during investigation. Police recorded the statements of Umesh, Biharilal, Ram Sahay, Ramawtar, Bhagwandas, Raju, Gangaram, Rameshwar and Sitaram. Complainant Umesh Assati, Ramawatar Conductor of the bus, Raju Driver, Gangaram Cleaner and two passengers viz. Rameshwar and Sitaram, who witnessed the occurrence. None of them named the applicant. None of the witness stated that he saw applicant at or near the place of occurrence. The only allegation against the applicant is that of hatching conspiracy alongwith other accused persons. Perusal of the memorandums, allegedly given by accused persons clearly indicate that the portion of the memo, which pertains to hatching of conspiracy, is legally inadmissible, being confession to police and that too in police custody. Motorcycle recovered at the instance of applicant cannot be said to be connected with the offence in the absence of any other evidence. No witness said that applicant made the other accused persons to board the bus in which the offence is said to have been committed. 7. Though critical scrutiny of the prosecution evidence is not permissible at the stage of framing charge, yet if on the basis of material adduced by the prosecution, taking it, as it is and as a whole, no incriminating material is disclosed against the accused, no charge can be framed against him. 8. In the present case, taking the prosecution evidence as it is and as a whole, I do not find any material to prima facie indicate that the applicant participated in commission of crime by hatching conspiracy. Charge can be framed only on the basis of evidence, which is legally admissible. 9. 8. In the present case, taking the prosecution evidence as it is and as a whole, I do not find any material to prima facie indicate that the applicant participated in commission of crime by hatching conspiracy. Charge can be framed only on the basis of evidence, which is legally admissible. 9. For the forgoing reasons, I do not find the impugned order framing charge against the applicant legally sound, as such it is set aside. Applicant is discharged. 10. Revision is allowed accordingly.