JUDGMENT 1. The petitioner has invoked two different provisions of the Code of Criminal Procedure by filing these ill-assorted petitions inasmuch as Miscellaneous Criminal Case (M.Cr.C. No.14139/2021) has been filed under Section 482 of the Code for quashing the charge-sheet filed against him vis-a vis Crime No.196/2019 for the offence punishable under Sections 307 and 302/34 of the Indian Penal Code registered at Police Station Budhni, District Sehore and Criminal Revision (Cr.R. No.1678/2021) has been filed under Section 394/401 of the CrPC against the order dated 19.02.2021 passed by the Court of Additional Sessions Judge, Budhni, District Sehore, in Sessions Trial No.152/2019 arising out of same crime number whereby charge under Section 302/120-B of the IPC has been framed against the petitioner. 2. The main thrust of challenge in both the petitions is based on a ground of fallaciously implication of the petitioner by unnecessarily roping him in the crime. As per the petitioner, his induction in the crime is solely ill-founded as on the basis of material available on record, offence under Sections 302 and 120-B of the IPC is not made out against him. In the circumstance, the petitioner seeks for his exculpation. Since the facts involved in both these petitions as also the material available on record, are one and the same, therefore, these cases are being heard and decided by this common order. 3. The genesis of the crime arose out of an incident when the Police of Police Station Budhni, District Sehore, after investigating registered the offence vide Crime No.196/2019 punishable under Sections 307 and 302/34 of the IPC and filed a charge-sheet under Sections 307, 302, 34 and 120-B of the IPC against various accused persons including the petitioner/applicant. (3.1) As per the case of the prosecution, an FIR vis-a-vis an incident said to have occurred on 17.05.2019 at about 04.30 am, was lodged by the complainant who was working as a Waiter in Yadav Dhaba on the same day at about 08.30 am saying that on the date of incident, at about 04.00 am, four persons namely Imlesh Rai, Vishnu Sharma, Mahesh Bhat and Pawan Sikarwar who used to often visit dhaba, reached there on motorcycle and on that day, some dispute with regard to payment of bill arose between the accused and dhaba owner, which culminated into scuffle. Then, after making a phone call by Imlesh Rai to somebody, they tried to escape from the spot, but Surendra (dhaba owner) chased them and thereafter, in a Bolero jeep three-four persons armed with weapons came and inflicted injuries to Surendra and as a consequence, he fell down on the ground and those persons fled away from the spot. Thereafter, an ambulance was called and Surendra was admitted to Budhni Hospital, but during medication, he breathed his last. As a result thereof, an offence has been registered against Imlesh Rai, Vishnu Sharma, Mahesh Bhat, Pawan Sikarwar along with three-four unknown persons including the petitioner/applicant. 4. Mr. Datt, learned Senior Advocate submits that owing to business rivalry as also political motivation, the name of the petitioner/applicant has been involved so as to make him accused in the alleged offence. As per learned Senior Counsel, even if the material available on record to implicate the petitioner/applicant is considered to be true on its face value, then it is clear that offence under Section 302 of the IPC is not made out against him. It is also claimed by him that since the charge under Section 120-B of the IPC is not made out against him, therefore, the entire charge-sheet in relation to the petitioner/applicant is liable to be set aside. However, during the course of arguments, learned Senior Counsel has claimed that while framing the charge against the petitioner/applicant, the trial Court has completely failed to appreciate the fact that the required ingredients for constituting an offence under Sections 302 so also 120-B of the IPC are lacking and as such, the petitioner/applicant cannot be charged for the alleged offence. Thus, the order framing the charge against him being without any legal foundation, deserves to be set aside. He submits that statements of some of the witnesses have been recorded by the trial Court which can be used against the petitioner/applicant, but even after considering the same, nothing has come to form an opinion that the petitioner/applicant, in any manner, was involved in the said offence. 5. Mr. Datt, learned Senior Advocate has principally contended that admittedly the petitioner/applicant was not physically available on spot. According to him, the incident occurred in a heat of passion and in fact there was no premeditated attempt to cause any injury to the deceased. 5. Mr. Datt, learned Senior Advocate has principally contended that admittedly the petitioner/applicant was not physically available on spot. According to him, the incident occurred in a heat of passion and in fact there was no premeditated attempt to cause any injury to the deceased. He has also drawn attention of this Court towards the case of the prosecution in which the witness namely Ashraf Ali is the only person who has stated that it is the co-accused Vishnu Sharma who had made a phone call to Sunil Gupta (petitioner/applicant) and asked him to send some more persons as some marpeet took place and on his phone call, the petitioner/applicant had sent some persons who assaulted the deceased. He has also submitted that the prosecution failed to ascertain that it is the present petitioner/applicant who had sent the persons on a call made by co-accused. He has submitted that merely because a statement was made by one of the witnesses saying that the co-accused had made a phone call to the petitioner/applicant, is insufficient to frame charge under Section 120-B of the IPC against the petitioner/applicant. He has drawn attention of this Court towards the statement of the Ashraf Ali recorded before the trial Court which is the sole material with the prosecution to implicate the petitioner/applicant. He has submitted that the prosecution is relying upon the statement of Ashraf Ali wherein he has stated that the co-accused Vishnu Sharma had made a phone call to the petitioner/applicant and on his call, he with an intention to kill the deceased, sent the persons, but on the contrary, there is no material collected by the prosecution to show that in actuality the co-accused Vishnu Sharma had made any phone call to the petitioner/applicant or not. He has submitted that the statement of Ashraf Ali is not trustworthy and the same cannot be relied upon because even from the charge-sheet, it is clear that the police has not ascertained the fact whether any phone call was made by Vishnu Sharma to the petitioner/applicant or not. He has submitted that the Investigating Team neither seized any mobile phone from the co-accused Vishnu Sharma nor collected his call details record or of the petitioner/applicant so as to make the statement of Ashraf Ali (PW/3) authenticated. In support of his contention, learned Senior Advocate has placed reliance upon various judgments of the Supreme Court viz. He has submitted that the Investigating Team neither seized any mobile phone from the co-accused Vishnu Sharma nor collected his call details record or of the petitioner/applicant so as to make the statement of Ashraf Ali (PW/3) authenticated. In support of his contention, learned Senior Advocate has placed reliance upon various judgments of the Supreme Court viz. (1979) 3 SCC 4 [Union of India Vs. Prafulla Kumar Samal and another]; (2011) 10 SCC 768 [Sherimon Vs. State of Kerala] and (2008) 10 SCC 394 [Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra]. 6. Combating the submissions made on behalf of the petitioner/applicant, Mr. Mohd Ali, learned counsel appearing for the objector has submitted that this is not the stage of determining the role of the petitioner/applicant. Even otherwise, the statements of some of the witnesses have been recorded, which are suffice for drawing an inference that enough ingredient for constituting the offence under Section 120-B of the IPC is available and as such, at this stage, the petitioner/applicant cannot be discharged. He has sanguinely submitted that the statements of the witnesses recorded under Section 161 of the CrPC can be further elaborated before the trial Court at the time of recording their statements and as such, at this stage, on the basis of material available as of now, the petitioner/applicant cannot be declared innocent and therefore the charge framed against him cannot be said to be illegal. He has further submitted that the trial is proceeding further and the statements of the witnesses are being recorded one after another. In the circumstance, it would not be justifiable for this Court to interfere in the trial at this stage. He has further submitted that the charge-sheet is available on record and the trial Court would definitely consider the material available before it during trial. In support of his contention, learned counsel for the objector has placed reliance upon various judgments of the Supreme Court viz. (1996) 4 SCC 659 [State of Maharashtra and others Vs. Som Nath Thapa and others] and (2017) 8 SCC 791 [Rajiv Kumar Vs. State of Uttar Pradesh and another]. 7. Mr. In support of his contention, learned counsel for the objector has placed reliance upon various judgments of the Supreme Court viz. (1996) 4 SCC 659 [State of Maharashtra and others Vs. Som Nath Thapa and others] and (2017) 8 SCC 791 [Rajiv Kumar Vs. State of Uttar Pradesh and another]. 7. Mr. Shroti, learned Panel Lawyer appearing for the respondent/State has also supported the submissions made by learned counsel for the objector and submitted that as per the prosecution's case, the petitioner/applicant was the main accused under Section 120-B of the IPC, as the persons who had assaulted the injured, belonged to him and on his instructions, they reached on spot with an intention to kill the deceased and as such, he has rightly been made accused in the crime. 8. I have heard the rival submissions made by learned counsel for the parties and perused the available documents. 9. The petitioner/accused is brought under the clouds of suspicion solely on the basis of statement of Ashraf Ali (PW/3). In the circumstance, it is indispensable to quote the relevant extract of his statement. 8. I have heard the rival submissions made by learned counsel for the parties and perused the available documents. 9. The petitioner/accused is brought under the clouds of suspicion solely on the basis of statement of Ashraf Ali (PW/3). In the circumstance, it is indispensable to quote the relevant extract of his statement. In paragraph-2 of his statement, Ashraf Ali has stated as under:- ^^02- fQj mu yksxksa us iwNk fd lqjsUnz lsB dgka gS] rks eSusa muls cksyk fd iku dh nqdku ij [kMs gSa] mlds ckn os yksx iku dh nqdku ij pys x,A ogka ij lqjsUnz HkbZ;k ds ikl tkdj ,d vkneh cksyk fd eq>s beys’k dgrs gS] rc lqjsUnz us iwNk dkSu beys’k rks mlus cksyk fd 'kjkc dkjksckjh lquhy xqIrk ds vkneh gS geA blds ckn beys’k jk;] fo".kq rFkk lqjsUnz ds chp esa dgklquh gksus yxh] beys’k jk; us dgk fd lquhy lsB dks Qksu yxkvks vkSj vkneh Hkstus dk cksyks] blds ckn fo".kq us Qksu yxk;k vkSj blds ckn beys’k jk;] fo".kq] iou o euh"k us lqjsUnz ds lkFk ekjihV dj Hkkx x,A tc ;s yksx ekjihV dj Hkkx jgs Fks rks muds ihNs&ihNs lqjsUnz lsB Hkh x, FksA FkksMh nwj tkus ds ckn ge yksx xksyw eka>h] vk’kh"k ;kno o ftrsUnz Hkh muds ihNs x, FksA tc ge igqaps rc lkeus ls ,d cqysjks xkMh vk;h ml xkMh esa ls rhu pkj yksx mrjs] xkMh esa ls mrjus okys yksxksa esa ls ,d vkneh fpYyk;k fo".kq :d tkvks gesa lquhy xqIrk us Hkstk gS vkt bls ugha NksMsxsa] mlds ckn lHkh yksxksa us lqjsUnz ds lkFk dqN yksxksa us jkWM] MaMas Vkeh ¼yksgs dh eqMh gqbZ jkWM tks Vk;j [kksyus ds dke vkrh gS½ yxs gq, ls ekjihV dh FkhA ekjihV djus ds ckn ;s yksx ogka ls Hkkx x,A Further, in paragraph-9 of his cross-examination, Ashraf Ali (PW/3) has narrated as under:- ^^09- ;g dguk xyr gS fd tc iqfyl dks ;g tkudkjh gqbZ fd ekSds ij dksbZ lquhy xqIrk uke dk O;fDr ugha Fkk rc ckn esa vki yksxksa us lksp le>dj lquhy xqIrk dks Qksu djus okyh ckr tksMhA ;g dguk xyr gS fd mlh lykg vkSj vuqØe esa ,d vfHk;qDr ls ;g dgyok;k x;k fd os yksx 'kjkc Bsdsnkj lquhy xqIrk ds vkneh gSA Ikz’u%& vkids dkmaVj ij cSBs gksus ds dkj.k vki ;g ugha crk ldrs fd ekSds ij mifLFkr fdlh vfHk;qDr us lquhy xqIrk dks Qksu yxk;k vFkok ugha vkSj Qksu yxk;k rks lquhy xqIrk ls ckr gq;h vFkok ughA mRrj%&vfHkqDr fo".kq us lquhy xqIrk dks Qksu yxk;k Fkk fdUrq lkeus ls lquhy xqIrk ls ckr gq;h fd ugha esa ;g ugha crk ldrkA^^ As per the above-quoted statement of Ashraf Ali, the co- accused Vishnu Sharma had made a phone call to the petitioner/applicant Sunil Gupta. Although, the name of Sunil Gupta has come, but there is nothing further collected by the prosecution to establish that actually any phone call was made by Vishnu Sharma to Sunil Gupta and whether the person, who was called, was the present petitioner or not. Inevitably, to separate the wheat from chaff, the prosecution did not bother to seize the mobile phone of Vishnu Sharma, which had been so done, would have shown connection with the present petitioner/applicant. Moreso, no call detail records were collected by the prosecution to substantiate that at the relevant point of time Vishnu Sharma had made phone call to the present petitioner/applicant only. Except the statement of Ashraf Ali (PW/3), there is nothing available in the charge- sheet to establish the fact that Sunil Gupta at any point of time played any role in the crime. Furthermore, the charge-sheet is axiomatic that the police did not care to seize mobile phone of any of the accused. In cross-examination, Ashraf Ali (PW/3) remained unsure to acknowledge that the phone call made by Vishnu Sharma to Sunil Gupta was matured or not and whether any conversation took place between them. Before making a person as an accused of an offence under Section 302 of the IPC as a conspirator charging him under Section 120-B of the IPC, it is incumbent upon the Court to see even at the time of framing of charge whether any incriminating material fulfilling the ingredient of Section 120-B of the IPC is available on record or not. In this context, Section 120-A of the IPC which deals with the definition of criminal conspiracy is required to be seen which reads as under:- '120A. Definition of criminal conspiracy.-When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.' and further, the material ingredient of Section 120-B is also required to be seen which reads as under:- '120B. Punishment of criminal conspiracy.-(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.' From the above definition of criminal conspiracy, it is required to see whether there was an agreement between two or more persons for causing an illegal act. Unless such an agreement is established, it is impossible to draw an inference of criminal conspiracy or to implicate a person under Section 120-B of the IPC. If the whole story of the prosecution is seen, it is beyond all reasonable doubts that the alleged incident occurred due to sudden provocation, without any pre- meditation of mind. It is also clear that there was no agreement between the accused persons with the present petitioner/applicant. Even nobody has stated that the phone call made between Vishnu Sharma and Sunil Gupta was matured or not. The charge-sheet also does not contain any material establishing any connection of accused persons with Sunil Gupta showing that any agreement between them had ever been made orally or in some other manner for committing an illegal act. 10. The statements of Golu Manjhi (PW/1) and also of Jitendra Katare (PW/2) are also made available on record. From the statement of Golu Manjhi (PW/1), who claimed to be an eye witness, it is seen that he refused to identify the accused Vishnu Sharma and in fact not supported the case of the prosecution and therefore declared hostile. 10. The statements of Golu Manjhi (PW/1) and also of Jitendra Katare (PW/2) are also made available on record. From the statement of Golu Manjhi (PW/1), who claimed to be an eye witness, it is seen that he refused to identify the accused Vishnu Sharma and in fact not supported the case of the prosecution and therefore declared hostile. Golu Manjhi (PW/1) in paragraph-2 of his examination-in-chief has stated as under:- “ 2- [kkuk [kkus ds ckn esjs }kjk [kkus dk fcy isesaV gsrq dkmVj ij lqjsUnz lsB dks fn;k FkkA fcy nsus ds ckn eS dke ij yx x;k FkkA mlds ckn vkokt vk;h vkSj eSus ns[kk fd ekjihV gksus yxh FkhA ekjihV gksus ds ckn ;s yksx ogka ls Hkkx x, FksA muds ihNs lqjsUnz lsB Hkh x, Fks ogka ij lqjsUnz lsB Qksj Oghyj xkMh ls Vdjk x, Fks vkSj fxj x, FksA eS ekSds ij x;k eSus ns[kk fd HkbZ;k ds flj ij pksV Fkh os dqN cksy ugha jgs FksA^^ Further, Jitendra Katare (PW/2) in paragraph-12 of his cross-examination has narrated as under:- ^^12- lk{kh ls iwNs tkus ij fd tc dkmaVj ij cgl py jgh Fkh rc mu pkj yMdksa esa ls ,d us ;g dgk Fkk fd Qksu yxkdj yMds cqyk yks tSlk eSus vius eq[; ijh{k.k esa crk;k gS ;fn mDr ckr dk mYys[k esjs dFku ¼izn’kZ Mh&1½ esa u gks rks eS ugha crk ldrk fd D;ksa ugha fy[kk D;ksafd ekSds ij ;g t:j gqvk Fkk fd ,d yMds us dkmaVj ij ;g dgk Fkk fd xqIrk th dks Qksu yxkvks fd yMdksa dks Hkst nksA^^ When the witnesses have confined their statements to the extent that somebody had made a phone call to Sunil Gupta, then the prosecution must have collected the said material to make a connection of accused persons with the present petitioner/applicant, but nothing is available on record to show as to how the police reached to the present petitioner/applicant and as to what material has been collected by the police to form a connection of present petitioner with the accused persons for implicating him in an offence punishable under Section 120-B of the IPC. None of the mobile phones were seized from the accused persons nor any call details record was collected by the police even that of the petitioner/applicant so as to establish that at the relevant point of time any of the accused had made a phone call to the petitioner/applicant. 11. Further, the trial Court has not specified as to what material is available against the petitioner/accused to try him under Section 120-B of the IPC. The Supreme Court in several occasions has observed that the case under Section 120-B of the IPC or of criminal conspiracy can only be made when on the basis of material collected, it is established that there was pre meeting of mind of the accused persons with the alleged offender who is being tried under Section 120-B to commit an illegal act. In the present case, there is no such material available to indicate that before or during the course of incident, the accused had any connection with the present petitioner/applicant. 12. In re Prafulla Kumar Samal (supra), on which learned Senior Advocate has placed reliance, the Supreme Court has dealt with the material ingredient to form an offence under Section 120-B of the IPC and also observed that when no such ingredient is available, then the person cannot be convicted or tried under such offence. The Supreme Court in paragraphs 14 and 26 has observed as under:- '14. We have mentioned this fact because this forms the very pivot of the case of the appellant in order to assail the judgment of the courts below. A perusal of this letter clearly shows that Respondent 1 made no attempt to conceal that the land in question was a Government land which was leased out to his vendor. A copy of the original agreement which also has been filed shows that under the terms of the lease, the same is entitled to be renewed automatically at the option of the lessee and unless the lessee violates the conditions of the lease, there is no possibility of the lease being resumed. As it is, the lease had been continuing from the year 1943 and there was no possibility of its not being renewed on September 1, 1973 when the period expired. As it is, the lease had been continuing from the year 1943 and there was no possibility of its not being renewed on September 1, 1973 when the period expired. In these circumstances, therefore, it cannot be said that the letter written by Respondent 1 referred to above was an evidence of a criminal intention on the part of Respondent 1 to grab huge compensation by practising fraud on the Government. Respondent 1 was a high officer of the Government and was a lessee of the Government, a fact which he never concealed and if he was able to get a good customer for purchasing his land or acquiring the same, there was no harm in writing to the concerned authority to fix the proper valuation and take the land. There was no question of any concealment or malpractice committed by Respondent 1. * * * * * 26. Lastly, there does not appear to be any legal evidence to show any meeting of mind between Respondents 1 and 2 at any time. Although the Collector at the time of the acquisition was a distant relation of Respondent 1, he had himself slashed down the rate of compensation recommended by the Revenue Officer from Rs 2,10,000 to Rs 2,00,000 and it was never suggested by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.' In the said case, there was no evidence available with the prosecution to prove any pre-meeting of mind between the petitioner and accused persons therein. 13. Over and above, in re Sherimon (supra), the Supreme Court has observed that when a person was tried under Section 120-B of the IPC and no pre-meeting of mind was proved so also the evidence available on record is totally inadequate to draw a conclusion about conspiracy, then such offence is not made out. The Supreme Court in the said case in paragraphs 16 to 19 has observed as under:- '16. It is undoubtedly true that PW 4 had not repaid the entire loan to City Auto Finance. He was in arrears. The Supreme Court in the said case in paragraphs 16 to 19 has observed as under:- '16. It is undoubtedly true that PW 4 had not repaid the entire loan to City Auto Finance. He was in arrears. However, in our opinion, on the basis of the evidence on record to which we have made a reference hereinabove, it was wrong on the part of the trial court and the High Court to come to the conclusion that the appellant was a party to the alleged criminal conspiracy entered into by the appellant and A-1 to A-3 to repossess the said autorickshaw irrespective of the consequences and, pursuant thereto, on 31-3-1999, A-1 to A-3 murdered the driver of the said autorickshaw and repossessed it. It was wrong to come to the conclusion that the evidence referred to hereinabove indicates the existence of a strong motive on the part of City Auto Finance to repossess the said autorickshaw at any cost. When it is not the case of the prosecution that the appellant was present when the murder took place and when no overt act is attributed to him by any witness, to hold him responsible for the offence under Section 324 IPC with the aid of Section 120-B is clearly improper and illegal. 17. The gist of the offence of conspiracy is the agreement between two and more persons to do or cause to be done an illegal act or a legal act by illegal means. There must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of the crime. In this case, no such evidence has come on record. PW 5 Biju, the employee of City Auto Finance at Moovattupuzha was the only witness examined by the prosecution to prove the alleged meeting between the appellant and the other accused. He has turned hostile. Therefore, there is nothing on record to establish meeting of minds between the appellant and the other accused. 18. Assuming that the appellant had produced certain documents pertaining to the said autorickshaw, it cannot be concluded on the basis thereof that he had entered into a conspiracy with A-1 to A-3 to repossess the said autorickshaw because the loan amount was not repaid and in pursuance thereof A-1 to A-3 murdered the driver of the said autorickshaw. 18. Assuming that the appellant had produced certain documents pertaining to the said autorickshaw, it cannot be concluded on the basis thereof that he had entered into a conspiracy with A-1 to A-3 to repossess the said autorickshaw because the loan amount was not repaid and in pursuance thereof A-1 to A-3 murdered the driver of the said autorickshaw. The evidence on record is totally inadequate to come to such a conclusion. It is, therefore, not possible to sustain the impugned judgment. 19. In the result, the impugned judgment and order of the Kerala High Court confirming the conviction and sentence awarded to the appellant under Section 324 read with Section 120-B IPC by the trial court will have to be, therefore, set aside and is accordingly set aside. However, we make it clear that the order passed by the trial court directing the appellant to pay a fine of Rs 1,50,000 is not set aside, in view of the statement made by his counsel, which we have quoted hereinabove. The fine amount, if not already paid, should be deposited in the trial court within a period of three months so that the trial court can take necessary action.' 14. During the course of arguments, learned Senior Advocate has also drawn attention of this Court towards the statement of brother of the deceased namely Yogesh Yadav, who in his statement recorded under Section 161 of the CrPC has stated as under:- ^^bl izdkj dh lwpuk feyus ij eS rFkk esjk HkkbZ eqds'k tYnh ls xMk dSls gqvk rc mlus crk;k fd lquhy xqIrk 'kjkc ds Bsdsnkj ds yksxksa us ueZnk iqy ds ikl eq>s tku ls ekjus dh fu;r ls yksgs ds lCcy ,oa yksgs dh jkM ,oa MaMks ls ekjihV fd;s gS tks igys Hkh <kcs ij vkrs tkrs jgrs Fks eS mUgs tkurk gWw muds uke fo".kq 'kekZ] euh"k HkkV] nsosUnz 'kekZ] vafdr tknkSu] beys’k jk;] fnyhi edokuk] iou fldjokj] xksfoUn iafMr gS ftUgksus ekjihV dh gSA^^ As per learned Senior Advocate, from the aforesaid statement of Yogesh Yadav, it is clear that the accused persons somehow belonged to Sunil Gupta, but even the deceased had not intimated that the said Sunil Gupta was otherwise involved in the offence. As per learned Senior Advocate even the statement of Yogesh Yadav is not enough to implicate the present petitioner/applicant for an offence punishable under Section 120-B of the IPC. As per learned Senior Advocate even the statement of Yogesh Yadav is not enough to implicate the present petitioner/applicant for an offence punishable under Section 120-B of the IPC. As per learned Senior Advocate nobody has made any statement that the accused persons came to dhaba of the deceased with a premeditated mind to assault him or to create any scene that too at the instance of Sunil Gupta and even the prosecution has also not come with the story that it was the present petitioner/applicant who was involved in conspiracy of committing any crime which is alleged to have been done in the present case. Thus, the story of the prosecution including the FIR which was recorded at the instance of Golu Manjhi (PW/1), who in any manner, not named the present petitioner/applicant and has been declared hostile as also the material collected by the prosecution indicating the involvement of the petitioner/applicant in an offence punishable under Section 120-B of the IPC, cannot be said to be proper. 15. So far as the case of Som Nath Thapa (supra) in which learned counsel for the objector has placed reliance is concerned, the Supreme Court in the said case has observed that while framing the charge, the trial Court has to see the existing prima facie case and if as per the trial Court there is a ground for presuming that the accused has committed the offence it can be said that a prima facie case has been made out against the accused. In the said case, the Supreme Court has also observed that if the Court thinks that the accused might have committed the offence then it can frame the charges and at the stage of framing of charge probative value of the materials on record cannot be gone into. However, the facts and circumstances of the said case are altogether different than the case at hand because the Supreme Court in the said case has observed that as to when a person can be made an accused under Section 120-B of the IPC and has also discussed the essential ingredients of criminal conspiracy. The Supreme Court in the said case has also observed that in an offence consists of a chain of actions, it is not necessary that each of the conspirators must know what the other conspirators would do. The Supreme Court in the said case has also observed that in an offence consists of a chain of actions, it is not necessary that each of the conspirators must know what the other conspirators would do. The aforesaid case relates to the incident of terrorist activity of committing blasts in Bombay city and there were several stages of conspiracy, therefore, the Supreme Court has observed as to in what manner, the theory of conspiracy can be presumed. Although, in the said case, some material was available on record, but in the present case, the petitioner/applicant is being charged for an offence under Section 120-B of the IPC for committing murder without there being any material of conspiracy and as such, the facts of the case relied by learned counsel for the objector are distinguishable with the fact of present case. Although, the Supreme Court in the said case while laying down an analogy with regard to test of existence of prima facie case at the time of framing the charge, has observed that there should be some ingredient of conspiracy available, but here in this case, no material of conspiracy is available as defined under Section 120-A of the IPC. 16. Further in the case of Rajiv Kumar (surpra), the Supreme Court has considered the fact as to how the offence under Section 120-B of the IPC could be made out and also considered the material ingredient of criminal conspiracy. The Supreme Court in the said case in paragraphs 45 and 46 has observed as under:- '45. The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself. 46. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself. 46. After referring to Yash Pal Mittal v. State of Punjab [Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540 : 1978 SCC (Cri) 5] and Ajay Aggarwal v. Union of India [Ajay Aggarwal v. Union of India, (1993) 3 SCC 609 : 1993 SCC (Cri) 961] in State of Maharashtra v. Som Nath Thapa [State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri) 820] in para 24, it was held as under: (Som Nath Thapa case [State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri) 820] , SCC p. 668) '24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy, knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.' (emphasis in original)' Although, in the said case, some of the public servants were prosecuted and finally convicted under Section 120-B of the IPC as they were found to be a part of conspiracy of corruption, however, there conviction was based upon the available material of conspiracy, but, in the present case, as has been discussed hereinabove, as per the material which has been collected by the prosecution, no ingredient of conspiracy is proved and as such, the said case has no application in the present case. 17. 17. However, the Supreme Court in the case of Yogesh Alias Sachin Jagdish Joshi (supra), after dealing with the situation wherein a person committed an offence under Section 302 of the IPC and charged with under Section 120-B of the IPC has observed as to in what manner, a person can be charged and what ingredient should be available with the prosecution to make him an accused under Section 120-B of the IPC. The Supreme Court in the said case has also dealt with the definition of criminal conspiracy as has been provided under Section 120-A of the IPC and further observed that it is manifest that the meeting of mind of two or more persons for committing an illegal act or an act by illegal means is sine qua non of criminal conspiracy, but it may not be possible to prove the agreement between them by direct proof. The Supreme Court in the said has also observed that existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused, but even in this case, there is nothing available on record to indicate the conduct of the accused as also to show that the present petitioner/applicant is the same person who has been named by the witnesses. However, as per the prosecution though some accused persons who were available on spot asked to make a phone call to Sunil Gupta to send some more person for the commission of crime, but it is not enough to make the present petitioner/applicant as an accused unless it is established that any call was made to Sunil Gupta and pursuant thereto there was any conversation made between them or the persons came on spot belonged to the petitioner. The Supreme Court in the case of Yogesh Alias Sachin Jagdish Joshi (supra) has observed as under:- '25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement. 26. Bearing in mind the essential features of the offence of criminal conspiracy enumerated above, we may advert to the facts of the instant case. The relevant portion of the charge-sheet filed against all the accused reads as follows: '... Though son of the complainant, Kunal Parihar got married with Accused 4 Hema Joshi, his family again arranged for another marriage with one Meenal of Baroda on 24-2-2001. Engagement ceremony took place and date of marriage was fixed as 30-11-2001. This fact came to the knowledge of Accused 1, 2, 3, 4, 5, 11 and 12. Therefore, in order to teach a lesson to the complainant they hatched a conspiracy to kill his only son Kunal. Accordingly, Accused 1 contacted Accused 6, Suresh Jhajara and further informed him that the complainant and his son should be taught a lesson as Kunal Parihar betrayed him and hence, should be taught a lesson and further asked him to carry out future plan. Accused 6 contacted Accused 7 and included him in the aforesaid conspiracy. Accused 1 to 4 contacted Accused 16 through Accused 6 and 7. Accused 16 (sic) is a notorious criminal. Criminal cases are pending against him in the District Court of Pune. In the offence regarding body, Accused 7 contacted him through witness Atul Lohar in order to carry out the aforesaid plan. Accused 1 gave Rs 80,000 to Accused 7 via Accused 6. Accused 16 in order to cause hurt to Kunal introduced Accused 8, 9, 10, 13, 14 and 15 to Accused 7. Accused 7 asked Accused 8, 9, 10, 13, 14 and 15 to join the aforesaid conspiracy and in order to carry out the aforesaid conspiracy successfully, Accused 7 purchased one Maruti Car No. MH 14 D 3027 from witness Afzal Khan Ibrahim Khan, resident of Dehu Road, and also Motorcycle No. MH 14 M 5786. Accused 7 asked Accused 8, 9, 10, 13, 14 and 15 to join the aforesaid conspiracy and in order to carry out the aforesaid conspiracy successfully, Accused 7 purchased one Maruti Car No. MH 14 D 3027 from witness Afzal Khan Ibrahim Khan, resident of Dehu Road, and also Motorcycle No. MH 14 M 5786. By using the aforesaid vehicles Accused 7 to 10 and 13 to 15 have committed the ghastly murder of Kunal. In order to carry out the aforesaid conspiracy successfully Accused 7 has used revolver, khukri, sickle, sword and iron bar and supplied it to Accused 8 to 10 and from 13 to 15. By using the aforesaid weapons, the aforesaid persons have assaulted Kunal Parihar due to which he sustained grave injuries and ultimately died. Hence, Accused 1, 2, 3, 4, 5, 6, 7, 11 and 12 have been charged under Sections 302 and 120-B IPC and Accused 7, 8, 9, 10, 13, 14, 15 and 16 have been charged under Section 302 read with Section 120-B IPC and under Sections 3 and 25 of the Arms Act.' (emphasis supplied) Thus, according to the prosecution version, when Accused A-1 to A-5, A-11 and A-12 learnt about the marriage of Kunal with some other girl, they hatched a conspiracy to teach a lesson to the father of Kunal, the deceased. In furtherance thereof, Accused A-1 contacted one of the assassins to kill Kunal. It is alleged that Accused A-1 to A-4 also contacted Accused A-16, a notorious criminal. In other words, the gravamen of the accusation by the prosecution is that it is Accused A-1 to A-5, A-11 and A-12 who had hatched the conspiracy; acted in concert to give effect to their plan to get Kunal murdered and in pursuance of the aforesaid criminal conspiracy, the other accused facilitated commission of the said crime. It is common ground that the case of the prosecution is based on circumstantial evidence, namely, threatening calls from the side of the accused to the complainant, his family and the earlier relationship between the deceased and Accused 4. 27. From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who had all allegedly entered into an agreement to eliminate the deceased. 27. From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who had all allegedly entered into an agreement to eliminate the deceased. However, as noted above, Accused A-1, A-2, A-4, A-11 and A-12 already stand discharged from the charges framed against them under Sections 120-B and 302 IPC vide orders dated 7-7-2006 and 14-5-2007, passed by the High Court and the Sessions Judge respectively. While discharging the said accused, both the courts have come to the conclusion that there is no material on record to show that they had hatched a conspiracy to commit murder of Kunal. Thus, the stand of the prosecution to the effect that the parents, sister and friends of the appellant had entered into a criminal conspiracy stands rejected by virtue of the said orders of discharge. Furthermore, in its order dated 7-7-2006, the High Court has opined that the circumstances, relied upon by the prosecution, even if accepted in their entirety, only create a suspicion of motive, which is not sufficient to bring home an offence of murder. As noted above, the State's petition for special leave against the said judgment has already been dismissed.' In the aforesaid case, the Supreme Court has affirmed the judgment of discharge from the charge of criminal conspiracy as no material was collected by the prosecution and held that only suspicion of motive is not sufficient to bring home an offence of murder. In the present case also there is no material available to make out a case of criminal conspiracy against the petitioner/applicant, therefore, framing of charge against him is unsustainable and liable to be set aside for the reason that the trial Court failed to see as to what material is available against the petitioner/applicant to make out a case under Section 120-B of the IPC for committing an offence under Section 302 of the IPC. 18. 18. Thus, in view of the discussions made hereinabove and the material collected by the prosecution so also the statements of the witnesses recorded during trial, this Court has no hesitation to say that the trial Court while framing the charge against the petitioner/applicant under Section 120-B of the IPC for committing an offence under Section 302 of the IPC has not seen the required ingredient of Section 120-A of the IPC so as to form an opinion that he was a part of any conspiracy and as such, the proceedings initiated against the petitioner/applicant under Section 120-B of the IPC for an offence committed under Section 302 of the IPC is an abuse of process of law, therefore, the same is liable to be set aside. 19. Accordingly, the order dated 19.02.2021 passed by the Court of Additional Sessions Judge, Budhni, District Sehore in Sessions Trial No.152/2019 [State of M.P. through Police Station Budhni, District Sehore Vs. Vishnu Sharma and others] in respect of petitioner/applicant namely Sunil Gupta is hereby set aside and as such, the proceeding initiated in pursuance to Crime No.196/2019 registered at Police Station Budhni, District Sehore, in respect of the petitioner/applicant is also quashed. 20. Ex consequentia, M.Cr.C. No.14139/2021 and Cr.R. No.1678/2021 are allowed.