DHANANJAYA Vs. STATE OF M P

JUDGEMENT

(1.) INVOKING extraordinary jurisdiction of this Court under section 482 of the Code of Criminal Procedure (henceforth, the 'Code'), petitioner has filed this petition for quashing the proceedings pending in the Court of Special Judge, Satna in Sessions Trial No, 106/2004 for offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC. The case of the prosecution is that on 12.1.2004, Tirath Prasad Gupta was kidnapped from Uchehra by certain persons. After investigation, the petitioner and 11 other co-accusea were arrested and charge-sheet was filed against them. On the basis of material on record, Special Judge, Satna framed charges against all the accused persons for the offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC. It is the case of the petitioner that he owns a public telephone booth bearing telephone No. 6122529064. It is alleged against him that some of the co-accused contacted the family members of the kidnapped Tirath and also some of the other co-accused on aforesaid telephone number. There is no evidence that this telephonic conversation was made to his knowledge. Normally, a public telephone booth is run by a person employed by the owner for the purpose. It is not necessary that owner should be available at the telephone booth round-the-clock. Usually, in a public telephone booth the customers talk on telephone in a closed cabin. It is not necessary that the owner or his employee present at the telephone booth should hear conversation of each customer talking on the telephone. The morals of the profession of running a public telephone booth require that the owner of the telephone booth or his employee should not hear the conversation of a customer talking on telephone.

(2.) IT is also the case of the petitioner that he has been arrested and chargesheeted. only on the memorandum of co-accused Anil Singh alias Vikki. There is no evidence that he participated in the offence of kidnapping along with other co-accused. He has not been identified by any of the prosecution witnesses. The petitioner also averred that as there is no material whatsoever against him, the charge-sheet filed against him for the offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC, charges framed against him and proceedings pending against him are liable to be quashed. I have heard Shri Arvind Singh, learned counsel for the petitioner and Shri J.K. Jain, G.A. for the State. Learned counsel for the State submits that there is sufficient evidence against the petitioner that the telephone of his public telephone booth was used by co-accused persons for making contacts with the family members of kidnapped Tirath and some co-accused persons. It is also alleged that petitioner also talked to the family members of kidnapped Tirath Prasad for ransom.

(3.) THERE is also, prima facie, material on record to show that the petitioner and other co-accused Sunil and Anil, the sons of Vindeshwari Prasad, contacted different persons on telephone. The voice of the persons who contacted relatives of Tirath Prasad Gupta was recorded. Whether this voice was of the present petitioner or not is a matter which will be decided by the trial Court after recording the relevant evidence. Whether the public telephone booth was being managed by the petitioner or his employee or by some other person on his behalf or whether the customers used to talk on telephone from cabin or whether because of scruples the petitioner does not hear the conversations of the customers are the matters which are to be decided after recording of evidence by the trial Court. At this stage, in the absence of any evidence a finding cannot be recorded that at the relevant time some person other than the petitioner was managing the public telephone booth owned by the petitioner or the petitioner had no knowledge of conversations made by co-accused persons with regard to kidnapping of Tirath Prasad Gupta or that the petitioner was not a party to the conspiracy. The fact that the public telephone booth of the petitioner was used in the crime is a" very strong circumstance against him. Section 120-A and 120-B of the IPC brought the law of conspiracy in India by making the overt act unessential when conspiracy is to commit a punishable offence. The offence of conspiracy is agreement between two or more persons to do any illegal act or a legal act by illegal means which may or may not be done but the very agreement is an offence and punishable. Overt act in a case of conspiracy consists in the agreement of the parties. The very plot is an act itself and the act of each of the parties is promise against promise enforced for a criminal object or for use of criminal means completes the offence. In a case of conspiracy it is difficult to establish the same by direct evidence. Conspiracy can be proved by circumstantial evidence showing connection between the alleged conspiracy and the act done pursuant to that conspiracy. When from the allegations made in the charge sheet it can be inferred that accused entered into a conspiracy with other person to commit an offence, there is justification in framing the charge against that accused and in directing him to stand for trial. The gist of the offence of conspiracy lies in forming the scheme or agreement between the parties. The material on record in this case and its totality is sufficient to raise a strong suspicion that there was well thought out plan to commit kidnapping and allied offences. At this stage it cannot be seen that the evidence is filmsy or suffers from various infirmities or there is inconsistencies in the evidence and the same lacks corroboration from independent source.