CR.MA/11886/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 11886 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= RAJESHBHAI MULJIBHAI PARMAR Versus STATE OF GUJARAT ========================================= Appearance : NANAVATY ADVOCATES for the Applicant MR MENGDEY, APP for the Respondent ========================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 28/04/2008 ORAL JUDGMENT 1. By this application under section 482 of the Code of Criminal Procedure, 1973 (the Code), the applicant who has been arraigned as an accused in connection with the first information report registered vide Bhachau Police Station I Crime Register No.82 of 2007 for the offences under sections 420, 467, 468, 471 and 120-B of the CR.MA/11886/2007 2/6 JUDGMENT Indian Penal Code, 1860 seeks quashing of the complaint insofar as he is concerned. According to the applicant he is falsely implicated in the aforesaid case and is sought to be involved only on the basis of a statement of a co-accused. 2. Mr. N.D. Nanavati learned Senior Advocate appearing with Mr. Mousam Yagnik learned Advocate for the applicant has submitted that there is no legally admissible evidence against the petitioner for the Court to proceed against the applicant. From the charge sheet papers, it is pointed out that only three witnesses have referred to the applicant in their statements. However, none of the statements in any manner connect him with the crime in question. It is submitted that when there is no legally admissible evidence against the applicant, the applicant should not be made to face the agony of undergoing the trial. It is accordingly urged that the complaint be quashed qua the applicant. In support of his submissions, the learned Senior Advocate has placed reliance upon two unreported decisions of this court. (i) Judgement and order dated 18.01.2002 in the case of Ranjitsinh Dolatsinh Waghela v. State of Gujarat rendered in Criminal Miscellaneous Application No.7323 of 2001, and (ii) Judgement and order dated 10.10.2000 in the case of Vijaybhai Dhuralal Soni v. State of Gujarat rendered in Criminal Miscellaneous Application No.5483 and 5596 of 2000, wherein the Court had quashed the complaints as except for the statement of the co-accused there was no material connecting the applicants therein CR.MA/11886/2007 3/6 JUDGMENT with the offence alleged against them. 3. On the other hand Mr. K.P. Raval, learned Additional Public Prosecutor has opposed the application. It is submitted that the applicant’s name has been disclosed by a co-accused. That a perusal of the statement of the co-accused clearly shows the direct involvement of the applicant in the crime in question. It is submitted that in view of the provisions of section 10 of the Indian Evidence Act, 1872, the statement of the co-accused can be relied upon for the purpose of proving existence of the conspiracy and for proving that the applicant was part of the conspiracy. Reliance is placed upon a decision of the Supreme Court in the case of State of Maharashtra v. Damu Gopal Shinde, AIR 2000 SC 1691, wherein the Court had held that the confessional statement of the co-accused, which was legally proved was admissible in evidence. Reliance was also placed upon a decision of the Supreme Court in the case of Ram Narain Poply v. Central Bureau of Investigation AIR 2003 SC 1691, for the proposition that direct evidence in proof of a conspiracy is seldom available: offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be CR.MA/11886/2007 4/6 JUDGMENT carried out, all this is necessarily a matter of inference. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. It is, accordingly ,submitted that in view of the statement of the co-accused implicating the applicant no case is made out for grant of any relief in favour of the applicant. 4. In response to the submissions advanced by the learned Additional Public Prosecutor, Mr. Nanavati, learned Senior Advocate has submitted that the decisions on which reliance has been placed upon by the prosecution would have no applicability to the facts of the present case. It is submitted that no confessional statement of any co-accused implicating the applicant has been recorded. It is pointed out that the statement of the co- accused on which reliance has been placed by the prosecution is a statement recorded by the police while the said accused was in police custody, which is clearly hit by the provisions of section 25 of the Evidence Act. It is also pointed out that the said statement does not form part of the charge-sheet papers hence, no reliance can be placed on the same. 5. A perusal of the first information report shows that the applicant is not named therein. Subsequently the petitioner has been arraigned as an accused on the basis of the statement of a co-accused recorded by the police and has been charge-sheeted for the offences referred to CR.MA/11886/2007 5/6 JUDGMENT hereinabove. 6. Having considered the rival submissions advanced by the learned Advocates for the parties, it is an admitted position that except for the statement of the co-accused there is no evidence to connect the applicant with the crime in question. The said statement is not in the nature of a confessional statement, which could be proved at the time of recording the evidence of the witnesses. In fact as pointed out by the learned Senior Advocate, the same does not even form part of the charge sheet papers. In the circumstances, the prosecution would not be in a position to rely upon such statement, which does not form part of the charge-sheet papers and is otherwise not admissible in evidence in view of the bar under section 25 of the Evidence Act. Hence, at present there is no legally admissible evidence against the applicant. The decisions of the Supreme Court on which reliance has been placed by the learned Additional Public Prosecutor do not lend any support to the prosecution, as the same pertain to confessional statements made by a co-accused, whereas admittedly the statement on which reliance is placed upon in the present case is not a confessional statement of the co- accused but is merely a statement recorded by the police presumably under the provisions of section 161 of the Code. 7. In the light of the facts noted above, it is evident that there is no legally admissible evidence against the CR.MA/11886/2007 6/6 JUDGMENT present applicant. In the circumstances, the applicant cannot be asked to face trail merely because he has been named as a co-accused in the charge sheet. At the same time, in case any legally admissible evidence implicating the applicant in the offence in question is brought on record during the course of trial, it would be open to the prosecuting agency or the trial Court to again arraign the present applicant as an accused. 8. For the foregoing reasons the application succeeds and is accordingly allowed. The FIR registered vide Bhachau Police Station I CR No.82 of 2007 and all proceedings emanating therefrom, are quashed qua the present applicant-accused Rajeshbhai M. Parmar, Resident of Kamdar Society, Datar Road, Junagadh. Rule is made absolute accordingly. (H.N.DEVANI, J.) shekhar/-