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2006 DIGILAW 614 (PAT)

Kailash Sah v. State Of Bihar

2006-07-20

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard. 2. This is an application under Section 482 of the Code of Criminal Procedure directed against the order dated 18.8.2004 by which the learned Vth Additional Sessions Judge, Begusarai, has been pleased to refuse to discharge the petitioner of offences under Sections 380, 302, 307, 324, 452, 120-B and 34, IPC. 3. On behalf of the petitioner it is submitted that neither in the FIR nor in the entire investigation any positive material has been found against petitioners involvement in the offence alleged. It is further submitted that if all the statements, as recorded by the police under Section 161, Cr PC, be accepted in its entirety and be laid in evidence even then no case much less conviction could be made out against the petitioner. Under the aforesaid circumstances, it is submitted that there was no material against the petitioner who ought to have been discharged. 4. On the other hand, the learned APP having gone through the entire case diary has submitted that several witnesses being common relation of the deceased and the petitioner have repeatedly stated that the deceaseds husband, who was the brother-in-law of the petitioner had strained relationship with the petitioner had an eye over their property. He has frankly admitted that beyond this there is not an iota of material either indicating that the petitioner had any plan to commit the said offence or the petitioner was seen at the time of occurrence. The petitioner is said to be over 60 years of old. 5. Having considered the submissions, it appears that on 4.5.1998 on the fardbeyan of one Nitu Kumari, aged about 17 years, who happens to be the niece of the petitioner and the daughter of the deceased the FIR was registered. It is alleged that in the early morning some persons knocked at their door. The father not being there the sister opened the door. Several persons entered and thereafter she found several persons in the Court yard, all of them were 20-30 years old. They assaulted their mother and one of the miscreants stabbed her. The miscreants took away some brief case containing clothes and belongings of elder sister. Thereafter she raised alarm and neighbours came. The miscreants run away. The mother was taken to the clinic of a doctor where she died. The FIR was registered against unknown. They assaulted their mother and one of the miscreants stabbed her. The miscreants took away some brief case containing clothes and belongings of elder sister. Thereafter she raised alarm and neighbours came. The miscreants run away. The mother was taken to the clinic of a doctor where she died. The FIR was registered against unknown. After investigation charge-sheet was filed against others as well as the petitioner. It is not in dispute that the informant being very closely related to the petitioner did not name him or identify him. The petitioner was not put on T.I. parade. The miscreants who were at the place of occurrence were all between 20-30 years. Various relations were examined in course of investigation and best it can be said that the petitioner was not in good terms with the deceased but beyond that there is no other material to connect the petitioner with the crime. Even in the supervision notes of the senior officials as referred to by the Sessions Court it is only the matter of opinion based on suspicion that charge-sheet had been ordered to be filed. 6. It is well settled that a person can be charged to substantiate an offence only if there is any material to substantiate the charge. In the present case, it is evident that so far as the substantive offences are concerned which took place at the place of occurrence, there is absolutely no material as against the petitioner. Next is the charge under Section 120-B, IPC. The petitioner could have been charged with conspiracy provided factum of conspiracy was brought on record by any material. The only fact is that the petitioner was not in good terms with the deceased and an inference being drawn that he had an eye on the property. This is not even suggestive of conspiracy to be available to charge a person for criminal conspiracy though it is not essential that all the conspirators are available at all point of time together, as conspirator can play a different role at different times. Here the conspiracy has to be there. In the present case there are no material to suggest any suggestion of conspiracy. The charge is thus based on speculation and not based on any material and therefore I agree with the submission on behalf of the petitioner that there are no material to sustain the charge as framed. 7. Here the conspiracy has to be there. In the present case there are no material to suggest any suggestion of conspiracy. The charge is thus based on speculation and not based on any material and therefore I agree with the submission on behalf of the petitioner that there are no material to sustain the charge as framed. 7. Secondly, one test that can be adopted in such cases if the statement was recorded by the police under Section 161, Cr PC in respect of the petitioner are taken to be correct in its entirety, in other words if they were to be made as it is in course of deposition then whether that would be sufficient to uphold the charge. 8. In the present case having noticed all the materials that have been gathered against the petitioner if that form part of evidence even then I am afraid there is no question of convicting the petitioner for the simple reason that neither conspiracy is established nor participation of a person is established nor any common intention amongst the parties is established. Suspicion, however, cannot take the place of truth. This is well settled. 9. In that view of the matter I have no option but to quash the charge as framed against the petitioner and direct the petitioner to be discharged. However, I may observe that if in course of trial any material evidence comes against the petitioner the Court would be at liberty to summon the petitioner under Section 319, Cr PC on the basis of new material which would come on record. 10. This application is allowed.