Madan Prasad Kharwar vs State of Jharkhand

R.R. Prasad, J.—This revision application is directed against the order dated 2.9.2008 passed by Special Judge, CBI-cum-Additional Sessions Judge 8th, Dhanbad in Sessions Trial No. 21 of 2008 whereby and whereunder petition filed u/s 227 of the Code of Criminal Procedure for discharge of the petitioner from the case has been rejected.

The facts leading to this case are that one Pramod Kumar Singh, a Coal Merchant, working with Suresh Singh, came from Varanasi to Dhanbad by train on 3.10.2003. At Dhanbad railway station, he hired a private car and came to his residence. While he was climbing the stair of his house, two persons riding on a motor cycle suddenly came over there and fired shot at him, as a result of which Pramod Kumar Singh sustained gunshot injuries. Immediately, he was taken to Central Hospital, Dhanbad by his neighbourers and friends where he was admitted in the Hospital at about 11.15 a.m. There at the hospital this petitioner posted at that time as Officer-in-Charge Saraidhela Police Station recorded he statement allegedly given by said injured Pramod Kumar Singh in presence of Suresh Singh, Santosh Singh and Ranbijoy Singh whereby Pramod Kumar Singh allegedly named Ramadhin Singh and Rajiv Ranjan Singh to be the persons, who shot at him. On the said statement, Dhanbad (Dhansar) P.S. case No. 638 of 2008 was instituted u/s 307/34 of the Indian Penal Code and also u/s 27 of the Arms Act against Ramadhin Singh and Rajiv Ranjan Singh. However, when Pramod Kumar Singh succumbed to his injuries, case was also registered u/s 302 of the Indian Penal Code.

Subsequently, the case was taken over by the CBI, who got it registered as R.C. No. 11(S) of 2003. After the case was investigated upon, it was revealed that the accused Suresh Singh had entered into criminal conspiracy in the year 2003 with the accused Kashmiri Khan and Syed Md. Akhtar @ Kharak Singh to commit murder of Pramod Kumar Singh whereby Rs. 3 lacs in cash was given to Kharag Singh to execute the plan. Thereupon, both the aforesaid accused persons in order to execute the illegal act made contact with Hira Khan, who along with Syed Arshad Ali came to the residence of Pramod Kumar Singh on the date of occurrence on a red colour Yamaha Motor Cycle being driven by Syed Arshad Ali and accused Hira Khan fired shot upon Pramod Kumar Singh causing bullet injuries. Thereafter the accused persons fled from there and came to the residence of accused Md. Ayub Khan @ Nanhe and informed that he has killed Pramod Kumar Singh.

In course of investigation, it further transpired that Pramod Kumar Singh on being fired upon was brought to Hospital where this petitioner, Sub-Inspector of Saraidhela Police Station at the instance of accused Suresh Singh, Santosh Singh and Ranbijoy Singh prepared a false statement purported to have been given by deceased Pramod Kumar Singh whereby Rajiv Ranjan Singh and Ramadhin Singh were falsely implicated with a view to screen Suresh Singh, Santosh Singh and Ranbijay Singh from being prosecuted.

After completion of investigation, CBI submitted charge sheet against all the aforesaid accused persons including this petitioner, who had recorded the dying declaration allegedly given by Pramod Kumar Singh though according to CBI, he had not given any such statement.

Thereafter cognizance of the offence was taken against all the accused persons u/s 120B read with Sections 302, 193 and 194 of the Indian Penal Code and also u/s 27 of the Arms Act.

Upon commitment of the case when it was registered as Sessions Trial No. 21 of 2008, an application was filed u/s 227 of the Code of Criminal Procedure before the learned Special 8th Judge, CBI-cum-Additional Sessions Judge , Dhanbad to discharge the petitioner from the case as, according to the petitioner, no role was played by this petitioner pursuant to conspiracy hatched by other accused persons to kill the deceased, rather the petitioner recorded the dying declaration of Pramod Kumar Singh while he was in ICU in presence of a Doctor, who subsequently denied to have been present at the time of recording Fardbeyan, but that retraction would never go to prove the culpability of the petitioner of creating false evidence. However, learned trial court rejected the prayer of discharge holding therein that there have been overwhelming evidences and materials against the accused.

Being aggrieved with the said order, this application has been filed.

Mr. Rajan Raj, learned Counsel appearing for the petitioner submitted that though according to Fardbeyan of the deceased, Pramod Kumar Singh, it was Ramadhin Singh and Rajiv Ranjan Singh, who committed murder of Pramod Kumar Singh, but in course of investigation made by the CBI it transpired that it was accused Suresh Singh, who had entered into a criminal conspiracy with Kashmira Khan and Syed Md. Akhtar @ Khadak Singh, to commit murder of Pramod Kumar Singh and paid Rs. 3 lacs to them and then the said illegal act was executed by Hira Khan who case to the place of the deceased along with Syed Arshad Ali and shot at the deceased resulting into his death. All these facts collected by the CBI even if accepted to be true, never go to show the hand of this petitioner in any manner in the conspiracy hatched by other accused in absence of any evidence to that effect and, therefore, the petitioner cannot be said to have committed offence u/s 120(B) read with Section 302 of the Indian Penal Code.

In this regard, it was further submitted that though there may be evidences against other accused for hatching conspiracy, but the petitioner, simply on account of committing allegedly altogether different offence, cannot be said to have conspired with other accused for committing main offence.

In support of his submission, learned Counsel has referred to a decision rendered in a case of Yogesh Alias Sachin Jagdish Joshi v. State of Maharashtra [arising out of SLP (Cr) No. 5515 of 2007] (2008 -TLPRE-0-710).

Thus, it was submitted that there being no evidence whatsoever of hatching conspiracy with other accused for committing main offence, the petitioner deserves to be discharged from the charge as levelled in the charge sheet u/s 120(B) read with Section 302 of the Indian Penal Code.

Learned Counsel appearing for the CBI submitted that this Court has already noted about the fact as to how this petitioner created a false statement of the deceased in order to screen the real culprit and this fact itself suggests beyond any shadow of doubt that the petitioner was also one of the parties to the conspiracy hatched by the accused to commit murder of Pramod Kumar Singh and as such, this petitioner cannot escape from being prosecuted u/s 120(B) read with Section 302 of the Indian Penal Code and also other offences.

Learned Counsel further submitted that, where in pursuance of the agreement, the conspirator committed offence individually or adopted illegal means to do legal act which has nexus to the object of conspiracy, all of them will be liable for such offences, even if some of them have not actively participated in the commission of those offences.

Learned Counsel in support of his submission has referred to a decision rendered in a case of State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru, .

Thus, the question falls for consideration is as to whether the petitioner on account of creating false document can be prosecuted for main offence committed, pursuant to conspiracy hatched by other accused persons ?

One of such question on amongst other virtually fell for consideration before the Hon''ble Supreme Court in a case of State (N.C.T of Delhi) v. Navjot Sandhu (supra) wherein argument was advanced on behalf of the State that where overt acts have been committed, all conspirators will have to be punished equally for the substantive offence irrespective of non-participation of some of them in such overt act.

Learned Senior counsel before the Hon''ble Supreme Court in order to buttress his stand put forth the reliance on the observation made in Nalini''s cae AIR 1999 SC 2640 and also on the observation made in a case of Firozuddin Basheeruddin v. State of Kerala (2001) 7 SCC 569 holding therein that all the conspirators would be liable for all the offences committed pursuant to the conspiracy on the basis of principle of agency where the conspiracy results in overt acts constituting distinct offences but the Hon''ble Supreme Court rejected that plea and held as follows:

We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefore are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened byway of analogy or by extension of a common law principle.

Here, in the instant case, as I have noticed earlier the petitioner has been alleged to have created false document but there has been no evidence to show that the petitioner was also one of the persons, who conspired with other accused persons, to commit murder of the deceased.

In that view of the matter, the petitioner, in view of the ratio laid down by the Hon''ble Supreme Court in a case of State (N.C.T of Delhi) v. Navjot Sandhu (supra), cannot be prosecuted for an offence u/s 120(B) read with Sections 302 of the Indian Penal Code and as such that point of the order under which the learned trial court refused to discharge the petitioner from charge u/s 120(B) read with Section 302 of the Indian Penal Code is set aside.

Accordingly, the petitioner is discharged from the charges u/s 120(B) read with Section 302 of the Indian Penal Code. However, there appears to be sufficient materials for framing charge under Sections 193, 194 of the Indian Penal Code and, therefore, the trial court to that extent has rightly rejected the prayer of the petitioner.

In the result, this application is allowed but in part.