| Headnote |
Code of Criminal Procedure, 1973: s.227 – Appeal by State and complainant against the discharge of accused persons – Prosecution case was that the victim-deceased was murdered in his house – The alleged contract killer came as a courier boy wearing black cap and goggles – The wife of the complainant identified him in investigation – As per the version of son/nephew and brothers of the deceased, the deceased had invested a substantial amount of money in committees run by accused-SCB and his son accused-SB which they were reluctant to return and were also trying to usurp share of the deceased in a factory – Statement of another brother of the deceased was that he and his son were receiving threatening calls from accused-NM, accused-LM and their associates and that these accused were responsible for murder of deceased – NM, LM and accused-Advocate-RS were arrested when they were travelling in a car and black photo frame, black cap, black goggles and a photo of the deceased were recovered from the car – NM got the Getz car recovered from the house in his village, in which the contract killer – JSS allegedly travelled to the site of occurrence to murder the deceased – The unlicensed pistol along with two live cartridges were recovered from the office of accused-SS – During investigation, the Call Detail Records of the accused were collected by the Investigating Officer – As per the version of the prosecution, NM had asked his cousin brother LM to carry out the murder – After initially agreeing, LM subsequently backed out – Thereafter, JSS was asked to execute the murder – F.S.L Report recorded that the lead recovered from the body of the deceased was fired from the pistol recovered from the office of SS – As per the report of the handwriting expert, the specimen handwriting of JSS matched the writing on the envelope which allegedly was carried by JSS to the house of the deceased – NM borrowed a car, unlicenced pistol with five cartridges and took JSS to the place of occurrence and waited in the car for JSS while he went to murder the deceased and then helped JSS to get away – NM was in continuous contact with accused-SB before and after the incident – The records of the committees run by SCB were allegedly destroyed by him – This would a strong suspicion about the conduct of SCB – The destruction of the records of the committees, which would have revealed the substantial investments made by the deceased was an incriminating factor – The circumstance of absconding of accused immediately after the murder would be also admissible as relevant ‘conduct’ under s.8 of the Evidence Act – The contemporaneous Call Detail Records (CDRs) between SB and NM, who accompanied JSS would also constitute strong material for framing the charge against all the accused – Charge Sheet was filed against all the accused – Sessions Court held that there was common intention between NM and JSS in the act of killing the deceased – However LM was discharged as there was not sufficient evidence to connect him with the crime – With respect to RS, it was held that evidence was not sufficient to frame charges against him as he had only tendered advice to NM to the effect that he should not use his licensed pistol for carrying out the murder – With respect to SS, the Sessions Court held that the unlicensed pistol along with two live cartridges were recovered from his office and charged him only for the offence u/ S. 25 of the Arms Act for keeping an unlicensed firearm in his possession – Sessions Court discharged SCB since the prosecution had collected evidence against him only in the form of disclosure statements from the accused persons after arrest – Sessions Court charged SB for the offence u/S. 25 of the Arms Act, since he got the licensed pistol belonging to NM recovered from his factory premises – Sessions Court held that the prosecution failed to make out a prima facie case against RS, LM, SCB who were discharged – The State and the complainant filed Revision before the High Court – High Court held that NM, SB, JSS were to be charged u/ s.302 read with s.34 IPC read with 120B IPC – The Judgment of the Sessions Court ordering discharge of SCB, SS, LM, RS was affirmed by the High Court – Hence the instant appeal by the State and the complainant – Held: The present case is one where the prosecution has alleged that there was a criminal conspiracy to murder the deceased by all the accused – The crime was not committed at the spur of the moment, but was preceded by meticulous planning where each of the accused played a separate role to achieve the common illegal object of carrying out the murder of the deceased – The manner and circumstances in which the offence was committed, and the level of involvement of the accused persons were relevant factors – Each conspirator played his separate part in one integrated and united effort to achieve the common purpose – Each one was aware that he has a part to play in the general conspiracy, to accomplish the common object – Conspiracy is mostly proved by circumstantial evidence by taking into account the cumulative effect of the circumstances indicating the guilt of the accused, rather than adopting an approach by isolating the role played by each of the accused – The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution – In cases of criminal conspiracy, better evidence than acts and statements of co-conspirators is hardly ever available – There was ample material brought on record which created a grave suspicion about the involvement of SCB, LM, SS in the murder of the deceased – Accordingly, Sessions Court is directed to frame charges against SCB under s.302 r/w s.34 IPC and s.120B and s.201; LM under s.302 r/w s.34 and s.120B; and against SS under s.302 r/w s.34 and s.120B and ss.25, 27, 54 and 59 of Arms Act – Penal Code, 1860 – s.302 r/w s.34.Code of Criminal Procedure, 1973: ss.227, 228 – Scope of – Held: The Court while considering the question of framing charges under s.227 has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused – If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial – At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted.Code of Criminal Procedure, 1973: ss.223, 386, 391 – Held: s.223 provides that persons accused of the same offence, committed in the course of the same transaction, must be jointly charged and tried – In the instant case, on account of the inconsistency in framing charges by the Sessions Court against the six accused, the trial got truncated – The trial with respect to three accused i.e. SB, NM and JSS proceeded in the absence of the other three accused viz. SCB, LM and SS – This was a case of criminal conspiracy based on circumstantial evidence – Since the trial in the instant case got truncated, it is necessary that the trial of the remaining three accused proceeds forthwith in accordance with law – With respect to the other three accused i.e. SB, NM and JSS the trial was conducted in the absence of the other three alleged coconspirators – The order of acquittal with respect to SB and NM is pending before the High Court – s.386 defines the powers of the appellate court in dealing with appeals – Under clause (a) of s.386, the High Court may reverse the order of acquittal and direct that further enquiry be made, or the accused may be re-tried, or may find him guilty and pass sentence thereon – As an appellate Court, the High Court may take further evidence while considering the appeals under s.391, if it is considered necessary, and take additional evidence on record. The High Court may also permit recording of statements under s.313 if considered necessary – High Court may take up the pending appeals in the case of SB, NM and JSS, after the conclusion of the trial of SCB, LM and SS, the remaining accused by the Sessions Court in this case. |
