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2015 DIGILAW 424 (GUJ)

State of Gujarat v. Jaku

2015-04-10

S.G.SHAH

body2015
ORDER : S.G. Shah, J. 1. Rule. Learned advocate Mr. P.M. Lakhani waives service of notice of rule on behalf of respondent Nos. 1 to 5. Learned advocate Mr. P.B. Khambolja waives service of notice of rule on behalf of respondent Nos. 6 and 7. Heard learned APP Ms. Jirga Jhaveri for the State, whereas learned advocate Mr. P.M. Lakhani for respondent Nos. 1 to 5 and learned advocate Mr. P.B. Khambholja for respondent Nos. 6 and 7. 2. All the respondents are original accused whereas applicant is a prosecuting agency, which has challenged the judgment and order dated 12.06.2014, a combined order below exhibits 10 and 30 by the Sessions Judge, Jamnagar. Exhibit 10 is filed by respondent Nos. 6 and 7 being original accused No. 5 and 6, whereas application at exhibit 30 is filed by respondent Nos. 1 to 5 being original accused Nos. 1, 2, 3, 4 and 7 to discharge them from the criminal case which is initiated pursuant to FIR being I - C.R. No. 168 of 2012 registered with "B" Division Police Station, Jamnagar City for the offences punishable under Sections 302, 511, 115, 116 and 120B of the Indian Penal Code of 17.04.2012. After investigation, the investigating agency has filed charge-sheet No. 232 of 2012 on 28.08.2012 alleging that all the accused have conspired to kill one advocate namely K.D. Thakkar because of his involvement in some cases of land, wherein because of said advocate, accused could not succeed in their motive and, therefore, they have decided to kill said advocate by arranging vehicular accident and for the purpose they have entered into conspiracy to purchase a vehicle and in turn they have purchased Honda Car. However, during such conspiracy when it was leaked the police raided the place where they were planning to kill said Mr. Thakkar and modus operandi to commit such crime and, thereby, after investigation, charge-sheet was filed as aforesaid. 3. Before entering into any factual details, since discussion hereinafter would make it clear that discussion of factual details will not be much material at this stage, the most glaring fact, which is coming on record, is an affidavit of Mr. G.A. Sarvaiya, Police Inspector, who has investigated the offence. In his affidavit, which is taken on record at exhibit 20 before the trial Court in Criminal Misc. G.A. Sarvaiya, Police Inspector, who has investigated the offence. In his affidavit, which is taken on record at exhibit 20 before the trial Court in Criminal Misc. Application No. 238 of 2014 (Sessions Case No. 29 of 2014), he has contended that in fact while adding and modifying the charge under Section 115 of the Indian Penal Code, the addition and disclosure of Section302 of the Indian Penal Code is a bona fide mistake and oversight on their part and they have forgotten to request to modify the charge, so as to omit the disclosure of Section302 of the Indian Penal Code and, thereby, it is his say that in fact offence is under Sections 120B, 115, 116 and 511 of the Indian Penal Code only and disclosure of Section302 of the Indian Penal Code is by mistake. With such disclosure if we peruse the operative order of impugned judgment, it is also clear that the Sessions Court has tried to allow the application for limited purpose as operative order, which reads as under: "1. The applications are partly allowed. 2. The, accused herein, all of them, are hereby ordered to stand discharged under Section 302 read together with Section 115, read together with Section 511 of the Indian Penal Code. 3. Rest of the reliefs are rejected. 4. The proceedings shall now be posted before the appropriate Court for proceedings further on remaining charges in accordance with law. 5. The applications accordingly stand disposed of." 4. However, it becomes clear that even while passing such order, the Sessions Court has missed the fact and requirement with reference to Section 302 of the Indian Penal Code, which would be there but in proper manner and, therefore, impugned order so far as operative direction No. 2 is concerned, needs to be quashed and set aside and requires modification. It is obvious that in fact, though nobody has been killed by anyone of the accused. In other words, the offence under Section 302 of the Indian Penal Code has not been taken place by any of the accused, in any manner, whatsoever. To be more precise though there is an allegation that all the accused have some motive to kill Mr. K.D. Thakkar, when Mr. In other words, the offence under Section 302 of the Indian Penal Code has not been taken place by any of the accused, in any manner, whatsoever. To be more precise though there is an allegation that all the accused have some motive to kill Mr. K.D. Thakkar, when Mr. Thakkar was alive on the date of filing of the charge-sheet, there is no question of initiating proceedings under Section 302 of the Indian Penal Code, in any manner, whatsoever. I have perused the police papers, which confirms the above disclosure that in fact though there is an allegation regarding conspiracy, there is no attack or assault on the advocate Mr. K.D. Thakkar and that there is no evidence regarding his death. 5. However, reference of Section 302 of the Indian Penal Code would be necessary in the charge-sheet, but in different manner when charges are under Sections 115 and 116 of the Indian Penal Code. Inasmuch as,, in the given case, the proposed charge would be in following manner, as per draft model charge given in the Indian Penal Code by Ratanlal and Dhirajlal in 32nd Enlarged Edition of 2013; "That all the accused had on or about 10:00 p.m. on 16.04.2010 at the office of Patel Tours and Travels conspired and abetted to commit an offence punishable under section 302 of the Indian Penal Code which is punishable with death or imprisonment for life, but during consequence of the bon-spiracy and abetment, if such offence was not completed and hence actual offence was not committed or caused no hurt to any one, and thereby, all of you have committed an offence under Section 115 of the Indian Penal Code only for abetment of offence punishable with death or imprisonment of life" 6. Therefore, when offence under Section 302 of the Indian Penal Code has not been committed, there is no question of framing charge under Section 302 of the Indian Penal Code and to that extent exhibits 10 and 30 are required to be partly allowed. However, it cannot be said that there would be a discharge under Sections 115 and 511 of the Indian Penal Code also at this stage, since police record otherwise confirms that an offence under Sections 115 and 511 of the Indian Penal Code is committed. However, it cannot be said that there would be a discharge under Sections 115 and 511 of the Indian Penal Code also at this stage, since police record otherwise confirms that an offence under Sections 115 and 511 of the Indian Penal Code is committed. Hence there would be a charge under Sections 115 and 116 of me Indian Penal Code against all accused for abetting to commit offence under Section 302 of the Indian Penal Code, but not for committing an offence under Section 302 of the Indian Penal Code. Therefore, impugned order needs to be modified by modifying the operative para 2 from the above quoted final order, which reads as under: "All the accused herein are ordered to be discharged from the charges under Section 302 of the Indian Penal Code only." Thereby, revision application is partly allowed. Concerned Court shall frame the appropriate charge as discussed hereinabove after hearing both me sides, in accordance with law. Rule is made absolute to that extent.