Order

10/09/2024

1. Heard learned counsel for the petitioner as well as the State. Notice has already been served to respondent No.2, who is complainant of this case. However, no one appears for the respondent No.2(complainant).

2. The petitioner is aggrieved by refusal of prayer for discharge by order dated 27.2.2015 passed in Sessions Case No. 39/2014 by the Learned Additional Sessions Judge No.3, Jodhpur. The learned trial Judge has farmed charges under Section 307 read with 120-B IPC.

3. The aforesaid Sessions trial arises out of FIR No.33/2014 registered with Pratap Nagar, Police Station on the statement of respondent No.2. Respondent No.2 alleged that on 20.01.2014 he was going on his Scorpio vehicle, two Motor cycle borne criminals who had masked their face allegedly fired upon him however, no injury was caused. The informant suspected that the incident was done at the instance of co-bus plyer with whom there was dispute for route and timing of bus motoring. Those persons are named in the FIR. During investigation, no statement of the informant was recorded under Section 161 Cr.P.C. rather the statement of co- accused Dhan Singh who was in jail was recorded by the police wherein Dhan Singh stated that the petitioner had telephonically agreed to hire Dhan Singh and others for firing at the informant. That much his evidence against the petitioner collected during the investigation.

4. Learned counsel for the petitioner submits that Section 25 and 26 of the Evidence Act clearly stipulates that no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. Therefore, statement of Dhan Singh cannot be proved during trial in view of aforesaid prohibition there is no other material. Even after statement of Dhan Singh the informant of the case did not state to the police that suspicion was also there against the petitioner for some dispute nor during investigation any material was brought on the record that the petitioner had any motive for firing against the informant.

5. Learned counsel for the State has gone through the charge- sheet and does not dispute that besides confession of co-accused and recovery of sim at the disclosure of the petitioner, there is no other legal evidence. Moreover, the disclosure and the place from where recovery of sim was made do not match nor the sim number, which is disclosed in the statement of co-accused Jaswant Singh, matches with the sim recovered at the behest of the petitioner.

6. In the circumstance, there is complete lack of legal evidence against the petitioner to compel the petitioner to face the trial, therefore, charge appears to be groundless.

7. Accordingly, the impugned order is hereby set aside qua the petitioner and this criminal revision stands allowed.

(BIRENDRA KUMAR),J

1-charul/- supplementary

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