IMPORTANT POINT
In a case for criminal conspiracy and substantive offence, if charge of conspiracy goes substantive offence, which is outcome of the same conspiracy cannot stand in the eye of law.

JUDGMENT

G.A. Kuchhai, J. - This acquittal appeal is presented by the State against an order of acquittal date 27-7-1981 passed by the Chief Judicial Magistrate, Budgam, whereby the accused alongwith other co-accused have been acquitted of the charges under section 120-B, 201,204, 381 RPC.

2. The prosecution case is that a pending criminal file under section 366, 376 RPC was detected missing from the office of Sessions Judge, Budgam on 28-5-1980 and the fact was-reported to the Presiding Office, by P.W.s. Ghulam Mohd. Qadri and S. Janak Singh clerks in the court on 30-5-1980. The Sessions Judge, Budgam appears to have referred the matter to the Registrar, High Court on the same date and on 2-6-1980 a report of the occurrence appears to have been lodged before the S.P. Budgam, which resulted in investigation of the case and presentation of a challan under sections 120-B, 201, 204, 381 RPC before CJM Budgam against the accused in the missing file, including Mushtaq Ahmed accused, clerk in the court of Sessions Judge, Budgam who figures accused in this appeal against the acquittal. The CJM Budgam after trial acquitted all the accused of the charges under sections 201, 204, 81, 120-B RPC vide order Indicated above and it is against this acquittal the State has filed this appeal against the sole accused Mushtaq Ahmed, the then Clerk in the court of Sessions Judge Budgam.

3. We have heard learned counsel for the parties.

Mr. Manzoor G.A. read before us the entire evidence produced before the court below and we were also taken through the order of acquittal, appealed against.

4. We on the basis of argument advanced propose to discuss the case in the first instance on merits.

5. The prosecution brought the charge sheet against the accused under sections 201, 381, 120-B RPC and relied on evidence for criminal conspiracy extra-judicial confession of the accused and recovery of certain portion of the missing file allegedly from the room occupied by the accused in this acquittal appeal.

6. We firstly take up the evidence regarding criminal conspiracy. The prosecution has examined Ali Malik, Hira Lal and Naba Ganat.

7. Hira Lal P.W. states that he saw one of the accused in the compound on the date the case was fixed and detected lost.

8. Ali Malik, Jamadar, state that he saw Mushtaq accused in conversation with the remaining accused in the court compound.

9. Naba Ganai, P.W. having stated that he heard Mushtaq accused, emphasizing the assurance to the accused regarding missing of the file and asking them for remuneration and expression of Gh. Mohd. Qadiri that the accused is neighbour of one of the accused in the missing file. This is the whole evidence on record to gather aspect of conspiracy of which the accused were charged. Statement of Hira Lal P.W. is of no significance as he has not heard anything. Same is the case with Ali Malik P.W. who has not revealed the conversation of the accused in the missing file and Mushtaq accused. Then is the statement of Naba Ganai. This witness, no doubt refers the conversation of Mushtaq Accused with other co-accused giving assurance to them regarding the missing file and asking for remuneration which is not in sight in evidence, was it ever paid, when and how much. The testimony of this witness does not deserve to be relied simply by observing he has no previous acquaintance with Mushtaq accused or the other co-accused who were facing trial in the missing file. The witness is a chance witness. He has not been able to give day, date when he heard the Conversation and appears having no special reasons to come into contact with the accused in any manner when he had no acquaintance even with Mushtaq, who had recently been posted in the office of Sessions Judge Budgam. There is no dispute to this fact that for conspiracy direct or visible evidence is a rear chance which is to be gathered only by actions, omissions of the accused regarding the substantive offence. In this case firstly no connection has be