|Case||Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, AIR 2008 SC 2991|
|Case Number||Criminal Appeal No 744 of 2008|
|Court||Supreme Court of India|
|Bench||Justice SB Sinha, Justice DK Jain|
|Author of the judgment||Justice DK Jain|
|Advocates for the appellant||Mr. Ravi Shanker Prasad|
|Advocates for the respondent||Mr. Ravindra Keshavrao Adsure|
|Relevant Act/Setions||Indian Penal Code, 1860- Section 120A|
|Author of the brief||Aditya Gor|
Around June 2000, Kunal called the appellants father and informed him that he was at Gauhati with Hema. On persuasion of the appellant’s father and mother, Hema agreed to return to Mumbai and stay with them. The marriage between Hema and Kunal have also been stated to be annulled during this time. It was then alleged by Kunal that he started receiving threat calls from the father of the appellants. Thereafter, Kunal’s marriage was rescheduled with another girl and the wedding was fixed in the month of November 2001. In the month of April 2001, Kunal left for Mahabaleshwar in his Maruti car. At that time, as it is alleged, the family members of the appellant had murdered Kunal. A ground was raised that since Kunal had scheduled his marriage with another girl the family members of the appellant had developed a grudge against him and thereby conspired to kill him. All of the family members were prosecuted for the offences under section 302 read with section 120B of the Indian penal code, 1860 and section 302 read with section 120B of the Arms Act.
|Appeal preferred by the appellant||Appeal preferred by the Co-Accused|
|Preferred before the Juvenile Justice Board under section 227 of the code.
October 2004– The Juvenile Board rejected the application. A criminal appeal was preferred before the sessions judge, Satara.
March 2005- This appeal was dismissed. A revision appeal was filed before the High Court
June 2006- The High Court dismissed the said petition.
|Preferred an application of discharge under section 227 of the code before the sessions judge, Satara.
January 2006- the application was dismissed. This was challenged before the High Court.
July 2006- The Chief Justice of the High Court accepted the appeal and held them to be not liable. It was observed by him that the prosecution case only created suspicion and there was no actual case of conviction raised.
Emboldened by the said order of the High Court on July 2006, the appellant filed a criminal writ petition under article 227 of the constitution read with section 482 of the code for quashing of the order passed in March 2005. It was argued that since the co-accused were discharged by an order in July 2006, he was also entitled to be discharged. This plea was rejected by the learned Judge in September 2006.
Both the orders passed in June 2006 and in September 2006 are challenged before the Supreme Court in the present case.
- In the charge-sheet, there is no overt act attributed to the appellant regarding actual murder and the threats allegedly given by his family members and friends to the family of the deceased are not sufficient to infer a criminal conspiracy, particularly when, the disputes between the two families had already been compromised much prior to the incident.
- There is absolutely no material available on record to prove the charge under section 302 read with section 120B of the Indian Penal Code.
- Since the other co-accused persons were discharged, there was no sufficient ground to proceed against the appellant for the said offences.
- Mere suspicion is not sufficient to hold that there is sufficient ground to proceed against the accused. (Union of India v/s Prafulla Kumar Samal, 1979 CriLJ 154)
Arguments of the state:
- There is ample material on record to show a strong motive for commission of a crime, namely, Kunals’ proposal to get married to another girl after an affair with Hema, which was obviously not liked by the appellant and his family members.
- It was thus pleaded that the High Court was justified in dismissing the appellant’s petition for discharge.
Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to the framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is “sufficient ground” to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not.
The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is the sine qua non of criminal conspiracy. The meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution if such inference is possible. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
It is common ground that the case of the prosecution is based on the circumstantial evidence, namely, threatening calls from the side of the accused to the complainant, his family and the earlier relationship between the deceased and Hema. From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who allegedly had all entered into an agreement to eliminate the deceased. However, the co-accused were discharged from the criminal conspiracy as it was observed that there is no ground which shows that a conspiracy has been hatched between them to kill Kunal.
Therefore when the other co-accused persons have been discharged of the conspiracy, no sufficient ground exists for proceeding against the appellant. Consequently, the appellant is discharged and the appeal was allowed.