SAHIBE ALAM Vs. STATE

JUDGEMENT

(1.) . This revision petition by the accused has been preferred against the order dated 29/05/2001 ordering framing of charge under section 120B IPC as also the charge framed pursuant thereto on 27/06/2001 against him by an Additional Sessions Judge in case FIR No.445/99 PS New Friends Colony.

(2.) . Facts giving rise to this revision lie in a narrow compass. On 20/07/1999 at about 9.10 PM four persons snatched a brief case containing amount of Rs.5,10,450.00 from Mool Chand, uncle of the informant and after chase one of them, namely, Abdul Faheem was apprehended with brief case while remaining three persons were successful in fleeing away. In his statement Abdul Faheem disclosed that Mohd.Yusuf, Mohd.Rizwan, Sajid and Anwar Pahalwan were his accomplices and conspiracy to commit robbery was hatched at the house of petitioner. Mohd.Yusuf and Mohd.Rizwan were arrested on 15/08/1999 and in their disclosure statements they also stated that conspiracy to commit offence was hatched at the house of petitioner. On the basis of disclosure statements made by said co-accused the petitioner was arrested on 16/08/1999. After filing of chargesheet, by the said order dated 29/05/2001 charges against Abdul Faheem, Mohd Yusuf and Sajid was ordered to be framed under sections 395/397/120B IPC etc while against the petitioner under section 120B IPC. Pursuant to this order charge under section 120B IPC was framed on 27/06/2001 against the petitioner alongwith said co-accused.

(3.) . Submission advanced by Sh.Abdul Sattar for petitioner was that neither the petitioner was present at the spot nor did he participate in alleged robbery. None of the witnesses have stated that petitioner had conspired with the co-accused on or before 20/07/1999 at his house to commit robbery/dacoity and merely on basis of disclosure statements made by three co-accused while in police custody, charge under section 120B IPC could not have been legally framed against him. while opposing petition Sh.M.N.Dudeja for State conceded before me that criminal liability under said section 120B is sought to be fastened against the petitioner only on basis of disclosure statements made to the police by the co-accused. To be noted that no confession made by an accused while in police custody is admissible in evidence against him under sections 25 and 26 of the Indian Evidence Act, 1872. However, under section 27 when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved against the accused. Section 30 of the Act provides that where more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, such a confession under section 30 of a co-accused is not evidence and it may be taken into consideration only as an element in consideration of the other evidence. That being the position, on basis of mere disclosure statements made by said co-accused about conspiracy to commit robbery having been hatched at the house of petitioner charge under section 120B could not have been legally framed against him. Thus, the impugned order dated 29/05/2001 and charge under said head framed against the petitioner deserve to be set aside.