Delhi District Court
State vs . Alok @ Narain & Kamlesh on 26 May, 2015
SC No. 143/15
State Vs. Alok @ Narain & Kamlesh
FIR No. 124/10
PS Chhawla
IN THE COURT OF SH. ANIL KUMAR:
ADDITIONAL SESSIONS JUDGE03 : DWARKA COURTS : DELHI
In the matter of:
SC No. 143/15
State Vs. Alok @ Narain & Kamlesh
FIR No. 124/10
PS Chhawla
26.05.2015
ORDER ON CHARGE
1.Arguments on charge have already been heard.
2. It is submitted by Ld. Addl. P.P. for the State that there is sufficient material to frame charge against the accused persons for the offence punishable under Section 302/365/120B IPC as deceased Naresh Bhati was robbed and murdered and accused persons were involved in the conspiracy of robbery and his murder alongwith the other culprits Arun Kumar and Mahender. It is further submitted by him that conspiracy hatched by present accused persons and other culprits, is prima facie established from disclosure statement of both accused persons involved in present case as well as other culprit namely Arun Kumar and Mahender. It is further submitted by him that accused persons were absconding and they were declared proclaimed offender in this matter. As Page no. 1 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla such this fact creates an additional circumstance against the accused persons in respect to their conspiracy in murder of deceased Naresh Bhati. It is further submitted by Ld. Addl. P.P. that since accused persons were declared proclaimed offender, hence, offence under Section 174A IPC is also made out against them in addition to the offence under Section 302/120B IPC.
3. It has been submitted by Ld. Defence Counsels that prima facie there is no sufficient material to frame any charge against the accused persons. It is stated by them that the entire case of prosecution is based on the disclosure statements of other culprits Arun Kumar and Mahender who are facing separate trial qua the offence involved in the present case and their disclosure statement is of no value, hence, accused persons are liable to be discharged.
4. In the present case, FIR was lodged on complaint in which complainant had stated that his brother (since deceased) Naresh Bhati was working at the shop of his brotherinlaw. On 25.07.2010, deceased Naresh Bhati closed his shop at about 7.00 p.m. and proceeded towards his residence at Khyala in his car with his driver Arun Kumar who was appointed 56 days back and at that time deceased was carrying Rs. 2 lacs cash. However, when he did not reach home, a missing report was lodged and on Page no. 2 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla 26.07.2010, Insp. Ashok, PS Sohna, Haryana informed about the death of the deceased to the complainant as his dead body was found in his car in Sohna area.
5. As per the case of the prosecution deceased Naresh Bhati was working as Manager in the shop under the name of Sri Krishna Steel and Cement Store belonging to his brotherinlaw Rajesh at Plot No. 52, UBlock, New Roshan Pura, Main Gurgaon Najafgarh Road, Delhi and deceased employed driver Arun Kumar and one other person namely Vijay. On 26.07.2010, deceased Naresh Bhati left his office for his house, having Rs.2 Lacs cash, by car being driven by Arun Kumar. On reaching Sai Baba Mandir, Najafgarh Arun Kumar made Mahender sit in the car which was objected by the deceased and thereafter, they both demanded money from the deceased, however, upon his refusal they allegedly shot him by katta and killed him in the car itself and, thereafter, they took the car to Sohna Area, Palwal Road, Haryana and left it at a secluded place and threw the katta and live cartridges in the field and took the said bag along containing money. Driver Arun Kumar was caught from his native place in Main Puri District, U.P and he made disclosure statement to the effect that he as well as Mahender were directly involved in the robbery and murder of deceased Naresh Bhati and Alok @ Narain Page no. 3 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla and Kamlesh were also conspired to do this illegal act. Accused Mahender was subsequently arrested and he also made same disclosure statement. The recovery of weapon of offence (katta) was made at the instance of Mahender from the nearby fields. It is further the case of prosecution that robbed articles i.e. sum of Rs. 45,000/ and a gold chain were recovered from Arun Kumar and mobile phone of deceased and a sum of Rs.13,500/ in cash were recovered from Mahender. Apart from these location of mobile phone of accused Mahender on the day of incident was also found near to the places of incident. Accused Alok @ Naraina and Kamlesh could not be arrested and they were declared proclaimed offenders. Thereafter, chargesheet only against accused Arun Kumar and Mahender was filed and charge under Section 365/397/302/34 IPC and 27 of Arms Act was framed against them and trial commenced and case against them is at the stage of defence evidence. When case against accused Arun Kumar and Mahender was at the last stage of prosecution evidence, accused Alok @ Narain and Kamlesh were arrested and supplementary chargesheet was filed against them and same was registered separately. As per chargesheet accused Alok @ Narain and Kamlesh have also made disclosure statement on the lines of Arun Kumar and Mahender.
Page no. 4 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla 6. The case of prosecution is, based on disclosure
statements of Arun Kumar, Mahender and accused persons involved in present case i.e. Alok @ Narain and Kamlesh, that robbery and murder of deceased Naresh Bhati is a result of criminal conspiracy hatched by all four culprits namely Arun Kumar, Mahender, Alok @ Narain and Kamlesh. Accused Alok @ Narain had worked as driver with deceased Naresh Bhati few months before the date of incident for some days at Najafgarh, Delhi and deceased Naresh Bhati had insulted him and fired him from his job without paying money and he had come back to his village in Distt. Mainpuri, U.P. One day in village he was consuming liquor with his coaccused Kamlesh and other associates Arun Kumar and Mahender where he told them about his insult and also that Naresh Bhati (since deceased) daily collects a huge amount and that if Naresh Bhati is killed then they can get huge amount. Accordingly, they made a plan and all the four persons came to Delhi where accused Alok @ Narain showed the shop of Naresh Bhati to his associate Arun and then Arun went there and requested him for a job and Naresh Bhati appointed him as a driver and he started his duties from 20.07.2010 and all the other persons returned back to village. As per the prosecution, accused Kamlesh stated to have provided countrymade pistol and cartridges to his associate Mahender.
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7. As per Section 227 of Cr.P.C. if upon consideration of the record of the case and documents submitted therein, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reason for so doing. As per Section 228 charge shall be framed, if there is ground for presuming that the accused has committed an offence. In other words, it can be said that if on the basis of material on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court is to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.
8. Allegations against the accused persons involved in present case is that they were part of conspiracy of robbery and murder of deceased Naresh Bhati.
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9. In Kehar Singh & Ors. Vs. State (Delhi Admn.) AIR 1988 SC 1883 (1) Hon'ble Supreme Court on the conspiracy has stated as under:
"44. .... ... ... ... ... .... .. .. .. .. ... Section 120A and Section 120B of Indian Penal Code which deals with the question of conspiracy.
Section 120A reads:
"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 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."
Section 120A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and S.120B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that S.10 of the Indian Evidence Act was enacted. Section 10 reads :
"Things said or done by conspirator in reference to common design
- Where there is reasonable ground to believe that two or more Page no. 7 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
This section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition, precedent is satisfied that the subsequent part of the section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two more persons have conspired together and this evidently has reference to S.120A where it is provided "when two or more persons agree to do or cause to be done." This further has been safeguard by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be, therefore, necessary that a prima facie case of conspiracy has to be established for application of S.10. The second part of Section talks of anything said done or written by anyone of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for Page no. 8 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused persons. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in S.10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of language of S.120A. It is only then the evidence of action or statements made by one of the accused, could be used as evidence against the other. In Sardar Sardul Singh Caveeshar Vs. State Maharshtra. (1964) 2 SCR 378:
(AIR 1965 SC 682 at p.687), Subba Rao J., (as he then was) analysed the provision of S.10 and made the following observations:
"This section, as the opening words indicate will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his coconspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant Page no. 9 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. ..............."
10. In the light of these observations and the analysis of S.10 I shall have to examine the prima facie evidences brought on record by prosecution in respect of conspiracy.
11. In the case in hand prosecution has failed to bring on record independent evidence as to where these accused persons met with other culprits in order to hatch conspiracy. Further prosecution has failed to bring on record independent evidence of visit of accused persons from Mainpuri to Delhi or their presence or stay in Delhi. Prosecution has placed on record, copy of driving licence attached with photograph of Arun Kumar who was allegedly driving the car of deceased on the day of incident but has failed to produce any such document of accused Alok @ Narain who has alleged to be driver of deceased few months prior to date of incident. Apart from this there is no prima facie evidence to show that accused Alok @ Narain was earlier employed with deceased Naresh Bhati. In trial against culprits Arun Kumar and Mahender, material witness Vijay who was employed on the shop, has not supported the case of prosecution Page no. 10 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla that accused Alok @ Narain was ever employed as driver. Apart from this there is no prima facie evidence to show that accused Alok @ Narain was ill treated by deceased Naresh Bhati. In view of these facts, I find that there is no sufficient independent evidence to prima facie establish any conspiracy on the part of accused persons involved in the present case in order to commit robbery and murder by other culprits Arun Kumar and Mahender. Mere disclosure statement of accused persons or other culprits made by them in police custody is not sufficient to make out case of conspiracy of robbery and murder. Nothing has been recovered at the instance or from the accused persons Alok @ Narain and Kamlesh, hence there is no material to connect them directly or indirectly with the offence involved in present case. Thus, there is no material with the prosecution on the basis of which or by implication or inference of which, the prosecution can prove tomorrow during evidence that there was any meeting of mind between accused persons involved in present case and other culprits Arun Kumar and Mahender, who allegedly have involved directly in the offence, to do the aforesaid illegal act or that they participated in any way in the commission of aforesaid offence in furtherance of criminal conspiracy of all the accused. Thus, there is no prima facie case and no grave suspicion exists against accused involved in present case for being in conspiracy with Page no. 11 /12 26.05.2015 SC No. 143/15 State Vs. Alok @ Narain & Kamlesh FIR No. 124/10 PS Chhawla other accused persons namely Arun Kumar and Mahender. Since nothing incriminating has been brought on record by the prosecution against the accused persons Alok @ Narain and Kamlesh, hence their failure to appear before the Court despite proclamation cannot be used as an additional circumstance in respect to alleged conspiracy of robbery and murder.
12. It is not in dispute that proclamations under Section 82 Cr.P.C against accused Alok @ Narain and Kamlesh were published by the Court on 20.02.2011 but they failed to appear before the Court in Delhi and hence, a case under Section 174A IPC is made out against them.
13. Accordingly accused persons Alok @ Narain and Kamlesh are discharged from the offences under Section 120B r/w Section 302, 365, 397, 398, 411, 34 IPC and Section 25 of Arms Act. Charge only under Section 174A IPC is ordered to be framed against accused Alok @ Narain and Kamlesh.
Announced in the Open Court on 26th Day of May 2015 (Anil Kumar) ASJ03/ Dwarka Courts Delhi/26.05.2015 Page no. 12 /12 26.05.2015