1999 Supreme(Guj) 353

Gujarat High Court
Judgename :A.L.DAVE
STATE OF GUJARAT - Appellant
Versus
ANILKUMAR PURANMAL GUPTA - Respondent
CRIMINAL REVISION APPLICATION 141 of 1999
Decided On : 07/24/1999

Headnote:(a) Criminal Trial - Framing of charge - Consideration and jurisdic- tion of Court to evaluate the evidence with special reference to a case involving conspiracy.

       At the time of either framing the charge or deciding the question of discharge of the accused, the Court is required to look into the evidence collected by the investigating agency and produced with chargesheet. Any material or evidence that is likely to be produced on record which may be collected and to be brought on record at later point of time cannot be taken into consideration while deciding this question. The Court while deciding this question, cannot enter into arena of detailed evaluation the evidence. However, the Court may examine the evidence with a view to ascertain if prima facie case, as alleged, is made out, even accepting the material at face value. The evidence as it appears as to be seen. For considering the question of conspiracy, legally permissible inference can be drawn. While drawing inference, Court cannot proceed on any presumption or assumption. To put it differently, inference cannot be bsed on another inference or presumption. The natrue of the evidence whether reliable or otherwise cannot be considered. Only that piece of evidence/material collected by investigating agency which can be/likely to be translated into legally admissible evidence, can be looked into by the Court.

       [Para 10]

       The evidence is not be weighed by the Court at the stage of framing of charge. There cannot be any dispute about this aspect. The evidence has to be taken into consideration and the prosecution has to show prima facie about the existence of the ingredients of the offence that the accused is charged with.

       [Para 23]

       (b) Charge of conspiracy - Proof of - It is hatched in private and secrecy therefore inference has to be drawn from facts & circumstances - But the inference that requires to be drawn need not take shape of conjecture but it has to be legitimate and legally permissible.

       There cannot be any two opinion that conspiracy may have to be inferred as usually it is hatched in private and secrecy. But the inference that requires to be drawn need not take shape of conjecture but it has to be legitimate and legally permissible, that can be said to be so only in case of a necessary inference, that would emerge from the circumstances and conduct of the accused.

       [Para 22]

       (c) Criminal Procedure Code, 1973 - Sec. 397 - Revision against framing of charge of conspiracy to eliminate deceased Sushama Nilkantha Vaidya against accused No. 2 Manjuben wife of accused No. 1 - No direct evidence in the case against accused No. 2 about her involvement - In order to draw inferences or presumptions against her as alleged by prosecution, the same will have to be drawn from other inferences & presumptions which is not permissible under the law - Law permits drawing of inference for conspiracy provided the material on record the circumstances & the conduct of the accused indicate possibility of a conspiracy & involvement of the accused - In absence of the same revision is liable to be accepted.

       It would not be safe nor legally proper to draw presumption/inference from another presumption/inference. If the arguemnts of the prosecution are to be accepted in order to infer involvement of accused No. 2 in the conspiracy, the Court will have to, in absence of any material, presume following factor.

       (a)

       That the quarrel between accused No. 1 and the deceased on or around 30th July, 1997 was so grave that the conspiracy was hatched and that too within few days thereof.

       (b)

       That the relations between accused No. 1 and the accused No. 2 had improved to an extent that they would indulge into a conspiracy to commit murder of the deceased as the relationship between accused No. 1 and the deceased had strained somewhere around 30th July, 1997 about 2 weeks prior to the incident.

       (c)

       That in order to fulfil the object of the conspiracy, the sale was organised at Surat within a short span to 12 days i.e. from 12.8.1997.

       (d)

       That because of the object of the conspiracy was not fulfilled between 12th August, 1997 to 15th August, 1997, accused No. 2 went to Surat to ensure the fulfillment of object of the conspiracy. (This will have to be done against the material on record to show that trip of Surat was decided at the insistence of the children of accused Nos. 1 & 2).

       (e)

       That accused No. 2 was able to prevail upon accused No. 1 and others to fulfil the conspiracy.

       (f)

       Accused No. 2 had knowledge of what transpired on 16th August, 1997 at Hotel Everyday Inn.

       (g)

       That when accused No. 2 accompanied accused No. 1 to Hotel Holiday Inn on 17th August, 1997, she was within hearing distance when accused No. 1 tried to pass her off as the deceased. (This too will have to be done in total absence of any material, even remote, to indicate her presence in near vicinity within earshot).

       (h)

       That her presence at the venue of sale at about 11.30 A.M. on 16th August, 1997 would indicate conspiracy; and

       (i)

       That the telephonic talk with accused No. 1 during her journey to Surat was only in connection with the conspiracy.

       In the opinion of this Court, this type of presumption after presumption based on one and another cannot be termed as an inference/legitimate inference to read the possibility of involvement of accused No. 2 in the conspiracy. The law permits drawing of inference for conspiracy provided the material on record, the circumstances and the conduct of the accused indicate possibility of a conspiracy and involvement of the accused in the conspiracy.

       [Para 26]

       (d) Criminal Procedure Code, 1973 - Sec. 397 - Revision against framing of charge of conspiracy to eliminate deceased Sushama Nilkantha Vaidya against accused No. 6 Sangitaben employee of accused No. 1 - The evidence collected by prosecution framing part of charge-sheet has to be taken as a whole - Statements of Ashok Tripathi & Santosh Patnaik if read separately they donot clear the involvement of accused No. 6 in the conspiracy but when both the statements are read together the picture emerges which prima facie proves her involvement - At the stage therefore, not proper to discharge the accused - Revision is therefore, rejected.

       It may be noted that the evidence collected by the prosecution forming part of the chargesheet has to be taken as a whole. Each statement cannot be looked into individually and considered. Such statement in isolation from other evidence collected cannot be considered. If statement of Ashok Tripathi and Santosh Patnaik are read together, the picture that emerges is that deceased had a heated discussion on telephone, one of the lady staff members tried to convince her, whose name, Ashok Tripathi, later on learnt to be Sangeeta. How this knowledge came to Ashok Tripathi is not clearly disclosed in the statement and therefore, at this stage, it would not be proper for this Court to presume this to be hearsay evidence and therefore not admissible in evidence and cannot be later on translated into a legally admissible evidence at the time of trial. Further, the statement of Santosh Patnaik indicates that after heated discussions, the lady staff member tried to convince the deceased. They went upstairs, again came down, two male staff members came there and tried to convince the deceased to go to the venue of the sale. They were followed by accused No. 1, then all of them went to the room whereafter the deceased was carried away to the car for being taken to the hospital. So from this, it is clear that all persons who are present, had gone to the room and whereafter the deceased was carried for being taken to the hospital. All went upstairs in to the room would prima facie include Accused No. 6 also. Her presence in the room where the incident is alleged to have occurred, at the time when incident is alleged to have accrued is seen, prima facie, from investigation papers. At this stage, therefore, keeping this two statements in mind, it cannot be said that the learned Sessions Judge has committed an error in holding that the this is not the fit case for discharge. it would not be proper to discharge the accused No. 6 at this stage in light of these materials. This Court may not taken to have considered anything on merits. Evaluating the evidence when it is led, will be the deciding factor at the trial. It is a question of evidence as to how Ashok Tripathi derived knowledge about the lady being Sangeeta and therefore, at this stage, this Court is not inclined to accept Revision vis-a-vis accused No. 6.

       [Para 13]