SAXENA, J. - (1.) THE petitioner by filing this petition under Section 482 Cr. P. C. has prayed that the charge framed against him by the learned Sessions Judge, Pali in Sessions Case No. 54/93 for the pffence punishable under Sec. 302 read with 120-B IPC, be quashed.
(2.) BRIEFLY the relevant facts, are that on 24. 1. 92, one Heer Singh submitted a written report to the S. H. 0. , Police Station Kerla, wherein he mentioned that his cousin Mohan Singh used to take contracts for preparing sweets & food in marriages and for other occasion, and that he used to reside in a house situated in Pali and come to his native village Dharmdhari, where his family resided after easy two three days. He further mentioned that on 23. 1. 92 at about 6 P. M. , when he along with Mohan Singh was going from village Dharmdhari to Pali, Khet Singh informed him that Mohan Singh was lying injured near the village pond and that blood was oozing out from his body. He thereupon rushed to the place of the occurrence alongwith Khet Singh, Jeev Raj Singh, Bhanwar Singh etc. where Mohan Singh was found lying with extensive injuries on his neck & that one cycle and a blood stained axe were also lying nearby. He also mentioned in his report that he did not know as to who had murdered Mohan Singh. Thereupon a case under Sec. 302 IPC was registered. During investigation, it transpired that co-accused Mahendra Singh was the servant of petitioner Jalam Singh; that the petitioner also used to take contracts for preparing sweets and food in marriages and for other occasions; that there was professional rivalry between the petitioner and the deceased; that accused Mahendra Singh used to reside in the house of the petitioner and that the petitioner had brought the weapon of offence i. e. the axe few days before the alleged incident. The investigation also revealed that immediately after the said incident, Kistoor Singh and Mohan Singh S/o Shohan Singh had seen accused Mahendra Singh running away towards Pali & when inquired by them, he had told them that he was going back to Pali to give the keys of the house to petitioner Jalam Singh. It is alleged that he also made extra judicial confession before them to the effect that he had inflicted injuries to Mohan Singh (deceased) on his neck and killed him. Co-accused Mahendra Singh was arrested in this case and on 29. 1,92, he gave certain informations under Sec. 27 of the Evidence Act and in pursuance thereof, he got recovered of cycle, whose front wheel was blood stained, and his blood stained pant from the house of the petitioner. It is alleged that the deceased was wearing a golden chain in his neck and about Rs. 3000/- and that co-accused Mahendra Singh in pursuance of his information dt. 30/1/92 also got the said golden chain and Rs. 2002/- recovered from the house of the petitioner's father Shri Ram Singh. The investigation further disclosed that the petitioner had entered into criminal conspiracy with co-accused Mahendra Singh for the offences under sections 302 and 404 IPC and under sec. 302 read with 120-B IPC against the petitioner in the Court of the learned MJM, Pali, who in his turn committed the case to Court of learned Sessions Judge, Pali. After hearing the parties and perusing the challan papers, the learned Sessions Judge vide his order dt. 16/11/92 framed the impugned charge against the petitioner. Hence this petition. I have heard Mr. S. R. Kumbhat, learned counsel appearing for the petitioner as well as the learned Public Prosecutor and the learned counsel for the complainant and perused the record of the lower Court in extenso. Mr. Kumbhat has strenuously contended that there is not an iota of evidence on record to draw any inference that the petitioner Jalam Singh had hatch a conspiracy with co-accused Mahendra Singh to commit the murder of the deceased. According to him, not a single witness, in his statement recorded under sec. 161 Cr. P. C, has slated that he had seen petitioner and Mahendra Singh having any conversation amongst themselves or assigned any overt act to the petitioner to connect him with the crime. He has submitted that the alleged recoveries of the blood stained cycle, blood stained pant, golden chain and a sum of Rs. 2002/- have not been effected from the possession of the petitioner and, therefore, there do not exist any valid ground to presume that the petitioner has committed an offence punishable under sec. 302 read with 120-B IPC. According to him, framing of the impugned charge against the petitioner amounts to abuse of the process of the Court and that to secure the ends of justice, the same deserves to be quashed. On the other hand, learned P. P. and Mr. P. R. Choudhary, learned counsel for the complainant, have read statements of various witnesses to prima facie show that co-accused Mahendra Singh was the servant of petitioner Jalam Singh, who had professional rivalry with the deceased Mohan Singh for last so many years; that the petitioner had brought the weapon of offence i. e. axe and even the reatended the deceased with dire consequences just about two days prior to the alleged incident. I have given my carefully consideration to the rival contentions and carefully perused the case law relied upon by Shri Kumbhat, learned counsel appearing for the petitioner Jalam Singh.
(3.) THE basic ingredients to constitute the offence of criminal conspiracy are that there should be an agreement between the persons, who are alleged to conspire and that such agreement should be for doing of an illegal act or for doing by an alleged to conspire and that such agreement should be for doing of an illegal means an act which may not itself be legal. It is common knowledge in cases of criminal conspiracy, the agreement between the conspirators can not generally be directly proved, but only inferred from the circumstantial evidence or the established facts of the case. In other words, the conspiracy need not be established by direct evidence of an actual agreement between the conspirators and their overt acts may raise a presumption of an agreement and knowledge for the purpose of conspiracy. THE connection has to be established or shown with the conspiracy and not with the separate acts of different conspirators, which are overt acts of different individuals in proof of the conspiracy. Overt acts may properly be looked-at as evidence of existence of a concerted intention and in many cases, it is only by means of overt acts that the existence of the conspiracy can be inferred or made out. But the criminality of the conspiracy is independent of the criminality of the overt act. THErefore to prima facie prove or establish conspiracy, it is not sine-qua-non that there should be direct communication between the each conspirator and every other, but criminal decision allege must be common to all. A criminal conspiracy is generally a matter of inference deduced from certain criminal acts of the parties done in pursuance of an apparent criminal purpose between them. In absence of direct evidence, the criminal conspiracy has to be inferred from the subsequent conduct of the parties having regard to all the relevant circumstances of the case. Section 228 Cr. P. C. lays down that the Judge shall frame a charge if after considering the record of the case and documents and hearing the arguments of both sides, there exists sufficient grounds for presuming that the accused has committed an offence triable exclusively by a Court of Sessions. At the stage of framing of charge, the prosecution evidence does not commence. The Judge has, therefore, to consider the question as to framing of charge on a general consideration of materials placed before him by the Investigating Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of framing of charge. At this stage even a very strong suspicion founded upon materials before the Sessions Judge, which leads him to form a presumptive opinion as to the existence of the factual ingredient constituting the offense alleged may justify the framing of charge against the accused in respect of the commission of that offence. For this proposition of law, I place reliance on the observations made by the Apex Court in Supdt. & Legal Remembrancer of Legal Affairs West Bengal vs. Anil Kumar Bhunja and others (1 ). In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others (2), the Hon'ble Supreme Court has considered the scope of sections 227 and 228 Cr. P. C. and dealt and spelt the import of word 'consideration' and has held that at the stage of deciding whether or not there exist sufficient grounds for framing a charge, the enquiry must necessarily be limited to decide as to whether the facts emerging from the record and documents constitute offence with which the accused is charged. The Apex Court has specifically laid down that at this stage, the trial Court may sift the evidence for that limited purpose only and is not required to marshall the evidence with a view to separate grain from the chaff. ;