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Madhya Pradesh High Court · body

2009 DIGILAW 150 (MP)

SHAKIR CHACHA v. STATE OF M P

2009-01-30

S.R.WAGHMARE

body2009
Judgment ( 1. ) BY this revision, the petitioner has challenged order dated 04/11/08 passed by the 13th ASJ, Indore framing charges under section 307/34 and 120-B of the IPC against the petitioner. ( 2. ) PRIMARILY, the contention of the Counsel for the petitioner was that the impugned order is contrary to the provisions of law, since the accused petitioner has been charged on the basis of inadmissible evidence i. e. confessional statements given in police custody by the co-accused. Stating that the Learned asj, Indore had no other material except the statement made under section 161 of the Cr. P. C by the witnesses before the police regarding the confession made by co-accused Ritesh and Gabbu at the police station and when such statements are reduced writing, they can be used only for the purpose of contradiction or re-examination that also only with the permission of the Court, Counsel urged that the charges clearly indicate that the petitioner accused had been falsely implicated by the co-accused since, it was alleged that the petitioner was the master mind behind the scheme of criminal conspiracy and he had offered Rs. 10,000/-to the accused to assault complainant Kailash and it was only consequent to the confession by both the co-accused Ritesh and Gabbu during investigation before the police that consequently, the present accused was charged under section 307/34. and section 120-B of the IPC. ( 3. ) COUNSEL for the petitioner placed his reliance on Rameshwar Singh Vs. State of Jammu Kashmir [ air 1972 SC 102 ], whereby the Apex Court held that the contents of the statements of witnesses recorded under section 161 of the cr. P. C during the course of the investigation cannot be taken into consideration for finding corroboration of the statements made in Court since there was apparently a bar under section 162 of the Cr. P. C. Further relying on Mahabir Mandal and others Vs. The State of Bihar [ air 1972 SC 1331 ] Counsel stated that the Apex Court held that the bar of inadmissibility created by section 162 operates not only on statements of witnesses but also on statements of the accused made to the police officer as has been held way back by the Privy Counsel in AIR 1939 page-47. Further Counsel relied on Kali Ram Vs. Further Counsel relied on Kali Ram Vs. State of Himachal Pradesh [ AIR 1973 SC 2773 ] whereby the Apex Court while discussing the restriction placed by section 162 of the Cr. P C on the use of statement made during the course of investigation and the Apex Court had held that the prohibition contained in the section relates to all statements made during the course of an investigation which cannot be set at naught by the police officer not himself recording, the statements of a person but having it in the form of communication addressed by the person concerned to the police officer. ( 4. ) FINALLY, placing his reliance on Antar Singh Vs. State of Rajasthan [ 2004 (10) SCC 657 ]. Counsel has stated that recently the Apex Court discussing the applicability of section 27 of the evidence Act and its requirements held thus: d. Evidence Act 1872- S. 27-Expression "so much of such information. . . as relates distinctly to the fact thereby discovered"- word "distinctly" - Meaning of, explained - Held, refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery - Reason behind this partial lifting of the ban against confessions and statements made to the police, explained - Words and phrases Distinctly" held: the word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. The phrase refers to that part of the information supplied by the; accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely, related to the fact discovered. Counsel thus, states that in the instant case, there was no direct or immediate cause of discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely, related to the fact discovered. Counsel thus, states that in the instant case, there was no direct or immediate cause of discovery. The part of the statement of witnesses recorded by the police was regarding the statement made by the co-accused that it was Shakir Chacha who had given inducement by offering Rs. 10,000/- to assault the complainant kailash; that this was the actual primary statement made by the co-accused before the police and there was no other material available for framing of charges under section 307/34 and 120-b of the IPC ( 5. ) DRAWING my attention to the statement of Gabbu, Counsel stated that the allegation was directly made by co-accused Gabbu and the same does not find corroboration from any other witness. Counsel stated that besides this on merit also, the prosecution was unable to make out the charges against the present accused. Co-accused Ritesh and Gabbu had not been identified by the complainant in the identification parade. The injuries caused to the complainant was also simple in nature and the most important fact was that co-accused Gabbu and Ritesh were convicted by the Court of 14th ASJ, Indore on 12/04/07 and consequently, on 02/04/08 the police arrested the petitioner and put up the charge sheet against him. The charges were framed by the 13th A. S. J. Indore against the present petitioner only on 04/11/08. The reason for the delay was given by the prosecution that investigation against the petitioner was going on as he was absconding and the charge-sheet would be put up against him u/s 173 (8) of the Cr. P. C. afterwards. Such delay speaks volumes about the malafides of the police and clearly, it was after thought to implicate the present petitioner. Counsel for the petitioner urged that there was no sufficient ground for proceeding against the petitioner nor any prima facie evidence on record despite which instead of discharging the petitioner. Learned Judge of the Lower Court below had framed the charges against him and in this light, the revision ought to be allowed and the petitioner be discharged after quashment of charges. ( 6. Learned Judge of the Lower Court below had framed the charges against him and in this light, the revision ought to be allowed and the petitioner be discharged after quashment of charges. ( 6. ) COUNSEL for the respondent, on the other hand, has stated that the petition is pre-mature in the sense that the petition has been filed at the stage of framing of charge and the petitioner would have full chance of putting up his defence. By the impugned order, the Court had observed that prima-facie it appears that it was only consequent to the accused conspiring by offering Rs. 10,000/- to the other accused; that accused Gabbu singh and Ritesh had assaulted complainant kailash on 04/01/06 at 8. 30 p. m. near the Electronic Complex, Khadi Gramodyog, indore. Counsel states that at the time of framing of charge in accordance with section 211 of the Cr. P. C. ail that was required to be seen was that and prima facie case is made out against the accused. At the stage of the framing of charge, the Court is not expected to go deep into probative value of the materials on record, the Court is obliged to see whether there is prima facie evidence in support of the charge levelled against the accused. The Court is not supposed to scrutinize the evidence at the time of framing of charge but is expected to exercise due diligence. Counsel urged in the instant case that from the FIR, there exists sufficient material for the Court below to have come to the conclusion that prima facie the charges are made out. ( 7. ) COUNSEL for the respondent-State, moreover, has already stated that the charge-sheet is not substantive piece of evidence that is recorded. It is the evidence recorded in the Court which is real substantive evidence and that such evidence can come only at the subsequent stage. Stating that prima facie when the case is made out on the basis of admissible evidence, the Court is liable to frame the charges accordingly as it is i. e. according to the allegations. Counsel for the respondent further stated that under section 120-B of the IPC, direct evidence was never possible and moreover, the petitioner has filed the petition at the pre-mature stage. Discharge cannot be sought merely on the ground that no further evidence would be available. Counsel for the respondent further stated that under section 120-B of the IPC, direct evidence was never possible and moreover, the petitioner has filed the petition at the pre-mature stage. Discharge cannot be sought merely on the ground that no further evidence would be available. All that was required was the Learned Judge of the Lower Court was satisfied and hence, rightly under the circumstances, the charges have been framed. ( 8. ) CONSIDERING the above Submissions, I find that petition deserves to be allowed; primarily, because the lower Court by the impugned order has based the charges on inadmissible evidence. It would be profitable to rely on the case of kashmira Singh Vs. The State of Madhya Pradesh [ AIR 1952 SC 159 ] whereby the Apex Court while considering the evidentiary value of confession held that the confession of an accused person cannot be made the foundation of a conviction, Proper way is to marshall evidence against the accused and use the confession only in corroboration. However, the Court also cautioned regarding the corroboration of accomplices and approvers; there is danger of using the testimony of one accomplice to corroborate another and the danger is not lessened as the "evidence" by such statements since it is not an oath and cannot be tested by cross-examine and prudence in such cases dictates the rule of caution. ( 9. ) IN the present circumstances also, the co-accused Ritesh and Gabbu have implicated the present petitioner which cannot be looked into since the statements were made and signed by them at the police station. The independent witnesses have also merely stated that they had heard the accused making the statements in the police station before the police. ( 10. ) THE same principle was more or less reiterated in the matter of Amar Singh vs. State of MP. [1996 Crilj 1582] whereby the Division Bench of this Court held that the statements made by the accused to a police officer during investigation were not admissible and did not become admissible merely because he was dead. Moreover, the statements were signed by the accused and therefore the bar of inadmissibility under section 162 of the Cr. P. C was also attracted. ( 11. ) SIMILARLY, Learned Single Judge of this Court in the matter of Pappu and another Vs. Moreover, the statements were signed by the accused and therefore the bar of inadmissibility under section 162 of the Cr. P. C was also attracted. ( 11. ) SIMILARLY, Learned Single Judge of this Court in the matter of Pappu and another Vs. State of M. P. [ 2000 (1) JLJ 391 ] held that cognizance taken under section 190 of the Cr. P. C and charges framed under section 211 of the Cr. P. C without any material would tantamount to the abuse of process of the Court when there was absolutely nothing on record against the accused, there would be no justification in allowing the criminal proceedings to continue and powers under section 482 of the Cr. P. C were exercised to quash the charge-sheet. ( 12. ) FINALLY, placing my reliance on Jayendra Saraswathi Swamigal Vs. State of T. N. [ 2005 (2) SCC 13 . ] I find that the Apex Court while considering the case of existence of criminal conspiracy held thus : "on facts, no worthwhile prima facie evidence apart from the alleged confessions of A-2 and A-4 were on record to show that appellant- accused along with A-2 and A-4 was party in a conspiracy. Involvement of appellant-accused, A-2 and A-4 in the alleged conspiracy was sought to be established by the confessions themselves, hence held such involvement could not be established under the Penal Code" ( 13. ) THUS, confessional statements are inadmissible in evidence. Then, under the above circumstances also, in the light of Kali Ram (supra) referred to by the petitioners Counsel, I find that the Apex Court has very succinctly observed thus and which is applicable in full force to this case : "another golden thread, which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. And further "it is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of any innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent persons. Some risk of the conviction of the innocent of course, is always there in any system of the risk can be minimized but not ruled out altogether". ( 14. ) IN the present case also, the imposition of the charge against the accused petitioner has been solely on the basis of confessional statements made by Co-accused Ritesh and Gabbu and at the cost of repetition and reiteration on such confessional statements made by the co-accused before the police are inadmissible in evidence and hence, the petition is allowed and the impugned order imposing charges is set aside. The petitioner is discharged from offence under section 307/34 and 120-B of the IPC. Petition allowed.