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2017 DIGILAW 600 (MP)

Asalam Sher Khan @ Chintoo v. State of M. P.

2017-05-02

G.S.AHLUWALIA

body2017
ORDER 1. This criminal revision under sections 397 and 401 of CrPC has been filed against the order dated 18.2.2013 passed by Additional Sessions Judge, Ganjbasoda, District Vidisha in S.T. No.182/2011 by which the charges under section 302 r/w section 120B of IPC and under section 302 r/w section 109 of IPC have been framed against the applicant. 2. The necessary facts for the disposal of the present revision in short are that in the night of 27.12.2010 at about 11:30 p.m., when the deceased Sanjeev Jain was sitting at his shop, he was called outside his shop by some unknown persons and thereafter one of the accused persons fired at him, as a result of which the deceased Sanjeev Jain expired. The complaint was immediately made to the police and Crime No.1073/2010 was registered by the police. During investigation, it was found that the co-accused Narendra Raghuvanshi, Saiyad Aziz Ali @ Guddu Banjara and Omkar Singh committed murder of Sanjeev Jain by firing at him. It is further alleged that after the murder of the deceased Sanjeev Jain, the main assailants took assistance of the applicant who was already confined in Kota Jail for making certain persons available who can take the blame of killing the deceased Sanjeev Jain on their head. According to the prosecution case, the applicant demanded Rs.20,00,000/- from making certain persons available to the main assailants so that they can take the blame of commission of murder on their head. According to the prosecution case, thereafter two persons namely Ashif @ Golu and Bittu @ Juber were sent to Ganjbasoda who came there on a Scorpio vehicle where they were told by the co-accused persons about the manner in which the offence was committed so that they can take the blame on their head. The basic allegation against the applicant in short is that although he was confined in jail and he had not participated in the commission of murder of the deceased Sanjeev Jain but he made the arrangements of two persons who can take the blame of committing murder of the deceased Sanjeev Jain on their head so that the main assailants can get away from their prosecution. While doing so, it is alleged that the applicant had charged an amount of Rs.20,00,000/-. While doing so, it is alleged that the applicant had charged an amount of Rs.20,00,000/-. The allegation, made against the applicant that although he was confined in the jail but still he was running his gang effectively, is very serious. 3. It is submitted by the counsel for the applicant that the only evidence available against the applicant is the confessional statements made by the co-accused persons under section 27 of Evidence Act but in view of the provisions of sections 25 and 26 of Evidence Act, the same is not admissible against the applicant. It is further submitted that this Court in Criminal Revisions No.410/2013 and 232/2013 has discharged the co-accused Gajju @ Gajendra Singh and Danish Hanishi of the charges considering the fact that the statements recorded under section 27 of Evidence Act are not admissible against the co-accused. It is submitted that the case of the applicant is identical to the case of Gajju @ Gajendra Singh and Danish Hanishi. 4. Per contra, it is submitted by the counsel for the State that the applicant was detained in Kota Jail but still he was running his gang and was using mobile phones and an attempt was made by the Investigating Agency to seize the mobile from the possession of the applicant but because of non-cooperation by the jail authorities, the same could not be done. It is further submitted that it is a case of conspiracy and, therefore, direct evidence is generally not available and inferences are to be drawn from the evidence which has come on record. It is further submitted that in view of section 30 of Evidence Act, the confessional statement made by the co-accused can be used against the applicant, as the applicant is being jointly tried for the same offence along the co-accused persons. It is further submitted that the confessional statements made by the co-accused are inculpatory in nature and, therefore, all the circumstances which are essential for making the provisions of section 30 of Evidence Act applicable are available. 5. Heard the learned counsel for the parties. 6. The prosecution case in short is that the deceased Sanjeev Jain was killed by unknown persons who were later on identified as Narendra Raghuvanshi, Saiyad Aziz Ali @ Guddu Banjara and Omkar Singh. 7. 5. Heard the learned counsel for the parties. 6. The prosecution case in short is that the deceased Sanjeev Jain was killed by unknown persons who were later on identified as Narendra Raghuvanshi, Saiyad Aziz Ali @ Guddu Banjara and Omkar Singh. 7. The allegation against the present applicant is that although he was detained in Kota Jail but the applicant made two persons namely Ashif @ Golu and Bittu @ Juber available to the main assailants in lieu of an amount of Rs.20,00,000/- so that Bittu and Ashif may take the blame of killing the deceased Sanjeev Jain on their head. The statements of the accused persons namely Mohd. Jameel and Jaheer Khan were recorded who had made a confessional statement that the applicant made two persons available to the main assailants so that they can take the blame of murder of the deceased Sanjeev Jain on their head. It is true that the confessional statement of accused which do not lead to a discovery of fact is not admissible in the light of provisions of sections 25 and 26 of Evidence Act but at the same time, the trial Court can always consider the effect of section 30 of Evidence Act while considering the aspect of conspiracy. 8. This Court had also called for the status report from the trial Court. By letter dated 3.3.2017, the trial Court has informed that out of thirty five witnesses, eight witnesses have already been examined. Thus, it is clear that the trial of the accused persons had already begun. Eight witnesses have already been examined. What would be the effect of section 30 of Evidence Act is yet to be considered by the trial Court. 9. So far as the co-accused Gajju @ Gajendra Singh and Danish Hanishi are concerned, the allegations against them were not serious and there was nothing on record that they made the two persons available to the main assailants so that they can take the blame of committing murder of Sanjeev Jain on their head. 10. 9. So far as the co-accused Gajju @ Gajendra Singh and Danish Hanishi are concerned, the allegations against them were not serious and there was nothing on record that they made the two persons available to the main assailants so that they can take the blame of committing murder of Sanjeev Jain on their head. 10. Considering the totality of the circumstances and the seriousness of the allegation made against the applicant coupled with the fact that the effect of section 30 of Evidence Act is yet to be considered by the trial Court as well as the trial has already begun and eight witnesses have already been examined, this Court is of the view that it is not a fit case to set aside the order framing charge as the trial has already moved to an advanced stage. 11. Considering the seriousness of the allegations, the prosecution should make all endeavor to produce the prosecution witnesses without any further delay. The incident is of the year 2010, seven years have already passed. Therefore, under these circumstances the trial Court is directed to conclude the trial within a period of one year from the receipt of copy of this order. 12. Accordingly, this revision fails and is hereby dismissed. 13. Let a copy of this order be sent to the trial Court for necessary information and compliance.