R.D.Khare, J. - (1.) HEARD learned Counsel for the applicants as well as the learned AGA for the State-respondent. Present 482 Cr.P.C. petition has been filed for quashing the order dated 1.12.2008, passed by the Additional Sessions Judge, Court No. 6, Allahabad in Sessions Trial No. 628 of 2008 whereby the Court below has framed charges against the applicants to face trial under section 365 IPC.
(2.) LEARNED Counsel for the appli cants has submitted that there is no legal evidence on record for framing of charges against the applicants, and also that the applicants were not even named in the first information report, dated 1.7.2007. It is further contended that the dead body of the deceased was not recovered either on the pointing out of the applicants or on the pointing out of any of the persons who were named in the first information report. It is next contended by the learned Counsel for the applicants that the names of the applicants figured in the statements of Jagdish, Smt. Munni Devi, Smt. Vimla Devi, Ramu, co-accused Sanjai and Om Prakash alias Dangar, copies of which has been filed as Annexures-3 to 8 to the pres ent petition. It is submitted on behalf of the applicants that the statements of the afore said persons do no specify as to from whom they enquired about the accused persons' alleged involvement in the com mission of the alleged offence and only vague averments have been made by these persons in their statements that they had made enquiry from their relatives. LEARNED Counsel for the applicants submits that these statements are part of the case diary/charge-sheet. LEARNED Counsel for the applicants further submits that the appli cants cannot be tried or charged under sec tion 365 IPC only on the basis of the state ments given by co-accused, namely Sanjai or Om Prakash alias Dangar, and has relied upon the Judgment of the Hon'ble Apex Court in Hari Charan Kurmi v. State of Bihar. 1964 (1) ACC 160 (SC) = AIR 1964 SC 1184. In the aforesaid judgment, Hon'ble Apex Court has held as follows : - "Thus, the confession of a co-accused person cannot be treated as sub stantive 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. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal juris prudence assists the accused per son and compels the Court to ren der the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt." Learned AGA has argued that pe rusal of the first information report reveals that it was lodged against Sanjai son of Hari Lal, Ashok son of Shambhoo Lal, Dangar son of Phool Chandra and two un known persons with the specific allegation that on 6.6.2007 at about 10.00 p.m. Sanjai had taken the deceased Jitendra along with him to the residence of Dangar where other persons including Ashok were present, thereafter Jitendra did not return back and after search with regard to his where abouts, the first information report was lodged on the premise that Sanjai, Dangar, Ashok and two other persons had kid napped him and who has still not been recovered till the date of lodging of the first information report. It is further contended by the learned AGA that after recovery of the dead body of the deceased and after performance of his last rites, the family members of the deceased started making inquiry and they came to know that the applicants were also involved in the com mission of the said offence for which they had stated in their statement, which has been appended in the present petition. It is further contended that co-accused Sanjai as well as Dangar had also named the co-accused in the commission of alleged of fence and thus, the passing of the order impugned and framing of the charge against the applicants does not suffer from any infirmity in law.
(3.) LEARNED AGA has submitted that the Court at the stage of framing of charge, exercise a limited jurisdiction, and it has only to see as to whether a prima facie case has been made out but cannot delve deep into the matter for the purposes of appreciation of evidence. LEARNED AGA has re lied upon the judgments of the Hon'ble Apex Court in Union of India v. Prafulle Ku mar Saniant and others, 1979 (3) SCC 4. Stri Atyachar Virodhi Parishad v. Dilip Nathnmal Chordia and oth ers, 1989 (26) ACC 417 (SC) = 1989 (1) SCC 715 State of Orrisa v. Debendra Nath Padhi, 2005 (51) ACC 209 (SC) = 2(K)5 (25) AIC 90 and Some Chakravorty v. State through CB1, 2007 (5) SCC 430 in support of his contention. Heard learned Counsel for the appli cants and perused the order impugned as well as the averments made in the present petition. Perusal of the statements, which are part of the charge-sheet, would show that after performing the last rites of the deceased, these persons enquired from their relatives with regard to the persons involved in the murder of the deceased and they were informed that apart from the named persons in the first information re port, the applicants are also involved in the alleged offence. This fact has also been stated by the co-accused persons. The Court below after considering the aforesaid facts and the charge-sheet on record prima facie, thought it necessary to summon the applicants to face trial under die charged section. By the order impugned, there is no adversity, so far as the applicants are con cerned, and they are only asked to face trial in which they can prove their innocence. The Hon'ble Apex Court in its judgment ren dered in the case of Hari Charan Kimni (supra) has held that in criminal cases where the other evidence adduced against co-accused persons is wholly unsatisfactory and the prosecution seeks to rely only on the confession of the accused persons then the benefit of doubt should be given to the ac cused persons. In the present case, this stage has not yet reached and during trial, if it is found that there is no other evidence against the accused persons or the applicants or if there is any such evidence which is wholly unsatisfactorily and if at that stage the prosecution seeks to rely only on the con fession of the co-accused persons, then benefit of doubt can be given to the accused persons. Accordingly, the prayer for quash ing the order dated 1.12.2008 is refused.;