Decided on September 13,2005

Raju Gosai Appellant


SUNIL KUMAR SINHA,J. - (1.) '' This order shall dispose of the two bail applications bearing M. Cr.C. No. 1853/2005 and M. Cr.C. No. 1836/2005. M.Cr.C. No. 1853/05 has been filed on behalf of the applicant Mohd. Javed whereas the other case bearing M. Cr. C. No. 1836/2005 has been filed on behalf of the two applicants Raju Gosai and Wasim Khan. The three accused persons of Crime No. 164/2005 registered under Sections 302/34 and 120 -B of I.P.C. and Sections 25 and 27 of the Arms Act at Police Station Kanker, Distt. Kanker (C.G.) have filed these applications for releasing them on bail under Section 439 of the Code of Criminal Procedure.
(2.) THE case of the prosecution is that on 22 -4 -2005 at about 20 hours, the complainant Matin Khan and deceased Ravi Shrivastava were traveling on a Motor Cycle in town Kanker. When they reached on a place known as Gad -Pichwari turn, two unknown persons came from their back side on another Motor Cycle and fired two gun shots on Ravi Shrivastava. Ravi Shrivastava was taken to the Hospital where he succumbed to gun shot injuries. The police registered a case u/s. 302/34 I.P.C. read with Sections 25 and 27 of the Arms Act. During the course of investigation it was found that the matter relates to contract killing. It is stated that the applicant Javed entered into a criminal conspiracy with the co -accused Raju Gosai and Wasim Khan for getting Ravi Shrivastava murdered. The motive for commission of the crime is said to be an incident in which Ravi Shrivastava and Matin Khan had abused one Gulam Bhai on certain previous occasion. Gulam Bhai is the father of the applicant Mohd. Javed. It is stated that on account of insult of his father, applicant Mohd. Javed entered into Criminal Conspiracy with the other two applicants and they were contracted for killing Ravi Shrivastava at Rs. 5 lakhs. Further case of the prosecution is that firstly, these two applicants Raju Gosai and Wasim Khan contacted one Manoj Sahu and when Manoj Sahu refused to do this work, they approached the other co -accused persons namely Pamma @ Paramjeet of Raipur and Mangal Singh of Bhilai and the contract was settled at Rs. 2,50,000/ - between them. On this contract, Mangal Singh, Pamma Sardar, Raju Khanjar and Rajesh Arora came to Kanker from Raipur and ultimately after finalizing their plan on 22 -4 -2005 accused Mangal Singh with the help of another person, who was driving the Motor Cycle, murdered the deceased Ravi Shrivastava. Shri S.C. Datt, Sr. Advocate assisted by Smt. Fouzia Mirza appearing on behalf of the Mohd. Javed in M. Cr.C. No. 1853/2005 argues that there is no prima facie evidence of criminal conspiracy between the applicant Mohd. Javed and the other co -accused persons namely Raju Gosai and Wasim Khan. He referred to the statements of Manoj Sahu and Shiv Bhan Singh and submitted that the confession of the co -accused Raju Gosai and Wasim Khan before Manoj Sahu, who have confessed that they have conspired and have contracted Pamma Sardar and Mangal Singh for Rs. 3 lakhs, who ultimately murdered the deceased, is not an evidence against Javed in the ordinary sense of the term as defined in Section 3 of the Evidence Act. He further submits that this part of evidence cannot be made the foundation of a conviction and can only be used in support of other evidence. He also submits that in any case the confession of co -accused persons cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. He takes the assistance from the judgments of the Apex Court Kasmira Singh v. The State of Madhya Pradesh1 and Haricharan Kurmi v. State of Bihar.2 He further argues that Shiv Bhan Singh is the witness who alleges to have heard a conversation between Raju Gosai and Wasim Khan that at the instance of Javed Bhai, they have got his work done and now the Raipur party is pressurizing for payment and if the payment is not made to them then they will kill them also because they have killed the person like Ravi Shrivastava, therefore, tomorrow, they will talk on phone to Mohd. Javed for remaining payment. This evidence does not seem to be reasonable and correct and it should also be of no use to the prosecution on the basis of principles referred to above. Lastly, he argued on the basis of the statement of Madan Mohan Singh who stated that he had seen Javed Khan talking to a Mobile No. 9826361776 on 27 -4 -2005 at about 9 p.m. from Jain STD PCO saying that he will make the payment within 1 -2 days. According to him, he was repeatedly saying that he will certainly pay the amount. Learned counsel submits that the Police has seized the Mobile set bearing said number from Wasim Khan and the prosecution is trying to connect the aforesaid conversation between Mohd. Javed and Wasim Khan as one of the circumstance of the criminal conspiracy which is unreasonable and unusual and the same cannot be relied even for the purpose of prima facie involvement of these applicants.
(3.) SMT . Fouzia Mirza, learned counsel appearing in M. Cr. C. No. 1836/2005 argued almost the similar points argued by learned senior counsel Shri S.C. Datt and prayed for releasing both the two points of this M.Cr.C. on bail.;

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