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Prosecution is protecting an accused person in murder case

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Criminal Law

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Question: Four accused have murdered my mother in a proeprty case. Three of them have been facing trial because a charge sheet has been filed against them. One person, a cleric, is not arrayed as accused in my case. Prosecution is protecting that accused person in murder case. One of the accused admitted that the vehicle and money was provided by said cleric. Accused have taken shelter in that cleric’s home for two months. The prosecution arrested them from his home but not mentioned in the case diary. Later on prosecution filed a charge sheet against three accused only. What should I do?

Asked from: Madhya Pradesh

The statement of the co-accused is considered as relevant evidence. Therefore, the court can array him as an accused on the basis of his statement. If you have any independent evidence either direct or circumstantial then you should approach the court to summon that cleric as an accused.

File an application under Section 319 crpc

You must have prima facie evidence against him. That evidence must infer or indicate his participation in commission of the offence. One co-accused has admitted that the vehicle was provided by the cleric. I suppose that the investigating officer has ignored this fact and did not collect evidence towards the vehicle. Because the prosecution wanted to protect him from accusation. 

Assistance in commission of crime constitutes offence of abatement. Abetment is punishable under Section 109 of the Indian Penal Code. When abetment is connected with the murder then accused will be punished under section 302/109 IPC. 

Harbouring or sheltering an offender is an offence under Section 212 IPC. That cleric has committed aforesaid offences. In devoid of evidence regarding harbouring and facilitating in commission of offence, his name has struck out from the charge sheet. Now, one co-accused has brought his name in the commission of murder. 

Therefore, you should pray to the court to summon him as accused under Section 319 crpc. In Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 the Supreme Court has held that 

Where strong and cogent evidence occurs against a person from the evidence led before the court, which is more than prima facie case as exercised at the time of framing of charge, the court can summon that person as accused under Section 319 of the code of criminal procedure.   

For application under Section 319 you must have cogent evidence against the cleric. The evidence must lead to his culpability. In Raj Kishore Prasad v. State of Bihar and another 1996 CrLJ 2523 the Supreme Court has held that in order to apply Section 319, it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial.

Also Read: What to do when police is doing unfair investigation?

The court has recorded the statement of a co-accused. His statement infers that the cleric is also involved in the crime. He has provided vehicle and money to the accused for commission of crime. He also harboured the accused after the commission of murder. 

Hence, the court should add him as an accused and issue summons under Section 319 crpc. The court can refrain the prosecution from protecting an accused person in murder case. If the court rejects your application then you should approach the High Court under Section 482 crpc.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

Consult on Criminal, Civil, Writ, Matrimonial, Service matters, Property, Revenue, SARFAESI related cases

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