Judgment:
N.G. Nandi, J.
(1) The charge framed under Section 228 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is sought to be revised/set aside in this criminal revision petition under Sections 397(1) and 401 of the Code under Sections 364, 387, 302, 201 read with Section 120-B, Indian Penal Code in Fir No. 32/92, Police Station Narela, Delhi by the learned Additional Sessions Judge, Tis Hazari Courts, Delhi.
(2) Four persons including the present petitioner have been charge-sheeted for the aforesaid offences on the allegation that on 23.1.1992, Ch. Inder Singh had come to Delhi in his Maruti Car No. DAJ-4331 for some personal work but did not return till night. Search was of no consequence; that on 28.1.1992 the complainant was given telephone call by his servant from his residence at Majlis Park, Azad Pur, Delhi and asked the complainant to take his letter which was left by someone whereupon the complainant went to his Majlis Park house on 29.1.1992 and there his servant gave him four envelopes which had no address written on them; that the servant told the complainant that on 28.1.1992 some unknown person had delivered the letters; that the reading of the letters revealed that Ch. Inder Singh had been abducted for money sake and the demand of Rs.5.00 lakhs to 10.00 lakhs had been raised with a threat in the letters that in case the money was not so delivered. his entire family will be killed. On this basis, the Fir came to be lodged.
(3) The Additional Sessions Judge, after hearing the Counsel for the accused and the prosecutor framed the charge for the aforesaid offence. Assailing the order framing charge against the accused Bhan Prakash Singh as the alleged co-conspirator, it is submitted by Mr. Sharma, learned Counsel for the petitioner, that before Section 10 of the Evidence Act could be relied the requirements contemplated, which are in two parts, must be satisfied and that in the instant case the first part of Section 10 of the Evidence Act is not complied with and so long as the requirement contemplated in the first part of Section 10 of the Evidence Act is not complied with, the second part of Sec.l0 does not come into play; that except statement of the coaccused, there is no evidence to connect this accused with the incident and that the statement of the co-accused is not a legal evidence on the basis of which charge could be framed; that u/Section 25 of the Evidence Act, the statement of accused can only be used for limited purpose of recovery and for no other purpose. As against this, it is submitted by Mr. Behl, learned App that the charge sheet alleges the conspiracy by two or more persons; that the statements of other witnesses Hem Chander and Ranvir suggest the involvement of other persons in the incident; that the statement of the witnesses do not suggest the name of this accused person and that the requirement contemplated in the first part of Section 10 of the Evidence Act is satisfied as there is reason to believe on the basis of the statement of the witnesses that two or more than two persons have conspired in the commission of alleged offence.
(4) In this regard, on behalf of the petitioner, reliance is placed in the case of Kehar Singh v. State (Delhi Administration) reported in 1989 Cri. LJ. P. 1. In para 44, it is observed that 'it is necessary that a prima facie case of conspiracy has to be established for application of Section 10 of the Evidence Act. The second part of Section 10 permits the use of the evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other.' In para 72, it is observed 'In view of this, it is clear that there is no evidence at all to establish prima facie participation of this accused in conspiracy or any evidence to indicate that he had entered into any agreement to do an unlawful act or to commit an offence Along with other accused persons. thereforee, in absence of any evidence in respect of first part of Section 10 which is necessary it could not be contended that the confession of Satwant Singh could be of any avail or could be used against this appellant.'
(5) In the instant case, as fairly stated by the App, there is no direct evidence against the accused except the statement of the co-accused as regards the action/ statement by this accused.
(6) It is not disputed that act or action of one of the accused could not be used as evidence against the other. But Section 10 of the Evidence Act is an exception to this general rule, in case of conspiracy. The first part of Section 10 requires that there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120A, IPC. As far as the compliance with first part of Section 10 is concerned, it does not refer to the nature of the evidence vis-a-vis a particular accused. All what is required for this limited purpose is whether there is any legal evidence to suggest involvement of two or more persons having conspired together. The statements of witnesses Hem Chander and Ranvir suggest two or more persons having conspired in the commission of alleged offence, no matter whether this accused is named specifically by these witnesses or not. Taking the first part of the section as it is, it does not say that for the purpose of compliance therewith, there must be reasonable ground to believe that the particular/specific accused person Along with other person or persons has conspired together. In the instant case, taking the statement of witnesses referred to above, the first part of Section 10 of the Evidence Act can be said to have been complied with since these statements do suggest that two or more persons have conspired together in the commission of alleged offence and it would be a matter of evidence at the trial as to who are those two or more persons involved in the commission of offence. The first part of Section 10 of the Evidence Act having been complied with as above, the second part of this section would come into operation i.e. the admissibility of the statements of a co-accused against the co-conspirator as Section 10 of the Evidence Act is an exception to the general rule, as in case of conspiracy u/Section 120A, Indian Penal Code as pointed out above.
(7) In the above view of the matter, the present criminal revision petition being devoid of merits, is liable to be dismissed as the order passed by the Court below not requiring any revision by this Court. In the result, the petition fails.