TMI Blog2008 (4) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. 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 broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal [ 1978 (11) TMI 151 - SUPREME COURT] . In State of Maharashtra Ors. Vs. Som Nath Thapa Ors.[ 1996 (4) TMI 515 - SUPREME COURT] , a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the appellant for the aforementioned offences. Therefore, we are constrained to allow the appeals. Consequently, the impugned orders are set aside and the appellant is discharged from the charges levelled against him in the charge-sheet. - S. B. Sinha And D.K. Jain, JJ. FOR THE PETITIONER : R. AYYAM PERUMAL FOR THE RESPONDENT : RAVINDRA KESHAVRAO ADSURE JUDGMENT: D.K. Jain, Leave granted. 2. These two appeals are directed against orders dated 23rd June, 2006 and 19th September, 2006 passed by the High Court of Judicature at Bombay in Criminal Revision Application No. 288 of 2005 and in Criminal Writ Petition No.1884 of 2006 respectively. By the first order, the High Court has repelled the challenge made to order dated 23rd March, 2005, in Criminal Appeal No.83 of 2004, whereby the Sessions Judge, Satara had affirmed the order passed by the Juvenile Justice Board, rejecting the application filed by the appellant under Section 227 of the Code of Criminal Procedure, 1973 (for short the Code ) for discharge. By the latter order, another Single Judge of the High Court has dismissed the writ petition preferred by the appellant, seeking quashi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al had been fixed with another girl, the appellant and his family members had developed a grudge and had, therefore, hatched a conspiracy with co-accused Umesh, Suresh, Bhavarlal Sharma, Captain Sharma to murder Kunal. 6. On completion of investigation, charge-sheet was filed against the appellant before the Juvenile Court, Satara, being below 18 years of age, and against fifteen other persons, which included his father (A-1), mother (A-2), sister (A-4), a family friend (A-11), manager of his father (A-12), in Sessions Court, Satara. All of them have been arraigned as members to the conspiracy to murder Kunal. The appellant, herein, and accused A-1, A-2, A-4 to A-7, A-11 and A-12 have been prosecuted for offences under Section 302 and 120B of the Indian Penal Code, 1860 (for short the I.P.C. ), whereas accused A-7 to A-10 and A-13 to A-16 have been prosecuted for offences under Section 302 read with Section 120B and under the Arms Act. 7. The appellant filed an application for discharge before the Juvenile Justice Board, under Section 227of the Code. The Juvenile Justice Board by order dated 1st October, 2004, rejected the said application. Being aggrieved by the said order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 and 19th September, 2006 are challenged in these two appeals. 10. At this juncture, two other significant subsequent developments deserve to be noted. In the first place, a Special Leave Petition, preferred by the State against order of the High Court dated 7th July, 2006, discharging accused Nos.2, 4, 11 12, was dismissed on 30th April, 2007. Secondly, relying on order dated 7th July, 2006, the father (A-1) of the appellant, termed as the main accused in the charge-sheet, filed an application before the Sessions Judge for discharge from all the charges. Taking note of the said order passed by the High Court, and inter-alia, observing that apart from the fact that the alleged threats are vague and are inadequate to connect the said accused with the crime, vide order dated 14th May, 2007, the Sessions Judge came to the conclusion that there was absolutely no material on the basis whereof a reasonable likelihood of the said accused being convicted could be predicted. Accordingly, he has discharged the said accused. Thus, as on date, the father (A-1), the mother (A-2), the sister (A-4) of the appellant and his two other associates (A-11 A-12) stand discharged of the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. 15. 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 and in this regard it is neither feasible nor desirable to lay down a rule of universal application. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication. 20. In Kehar Singh Ors. Vs. State (Delhi Administration) , the gist of the offence of the conspiracy has been brought out succinctly in the following words: The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough. 21. Again in State of Maharashtra Ors. Vs. Som Nath Thapa Ors. , a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of marriage was fixed as 30.11.2001. this fact came to the knowledge of the accused No.1,2,3,4 5 and 11 12. Therefore, in order to teach a lesson to the complainant they hatch conspiracy to kill his only son, Kunal. Accordingly accused No.1 contacted accused No.6 Suresh Jhajara and further informed him the complainant and his son should be taught a lesson as Kunal Parihar betrayed him. Hence should be taught a lesson and further asked to carry out future plan. Accused No.6, contacted accused No.7 and included him in the aforesaid conspiracy. Accused No.1 to 4, contacted accused No.16, through accused No.6 and 7, accused No.16 pending is a notorious criminal. Criminal cases are pending against him in the District Court of Pune. In the offence regarding body, accused No.7 contacted him through witnesses Atul Lohar in order to carry out the aforesaid plan. Accused No.1 gave ₹ 80,000/- to accused No.7 via accused No.6. Accused No.16, in order to cause hurt to Kunal introduced accused No.8, 9, 10, 13, 14, 15 to accused No.7. Accused No.7 asked accused No.8, 9, 10, 13, 14, 15 to joint the aforesaid conspiracy and in order to carry out the aforesaid conspiracy successf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onspiracy to commit murder of Kunal. Thus, the stand of the prosecution to the effect that the parents, sister and friends of the appellants had entered into a criminal conspiracy stands rejected by virtue of the said orders of discharge. Furthermore, in its order dated 7th July, 2006, the High Court has opined that the circumstances, relied upon by the prosecution, even if accepted in its entirety, only create a suspicion of motive, which is not sufficient to bring home an offence of murder. As noted above, State's petition for special leave against the said judgment has already been dismissed. 26. We are, therefore, of the view that in the light of the subsequent events, namely, the orders of the High Court dated 7th July, 2006 in Criminal Writ Petitions No. 1283 1284 of 2006, discharging appellant's mother, sister and two close associates, accused Nos.2, 4, 11 and 12 respectively; order dated 30th April, 2007 passed by this Court dismissing the Special Leave Petition preferred by the State against order dated 7th July, 2006 and order dated 14th May, 2007 passed by the Sessions Judge, Satara, discharging the father (A-1) of the appellant, stated to be the mastermind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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