apl548.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 548 of 2016
Ramlal son of Visramji Katre,
aged 43 years,
occupation - business,
resident of Bungalow No.46,
H. B. Town, Old Pardi Naka
Square, Bhandara Road,
Nagpur, Tq. & Distt. Nagpur. ..... Applicant
Versus
1. State of Maharashtra,
through Police Station Officer,
Police Station, Kalamana,
Nagpur City Tq. & Distt.
Nagpur.
2. Investigation Officer,
State CID [Crime Investigation
Department], Kalamana,
Nagpur City,
Tq. & Distt. Nagpur. ..... Non-applicants
*****
Mr. Sunil Manohar, Senior Adv., with Mr. U. K. Bisen, Adv., for the
Applicant.
Mr. K. L. Dharmadhikari, Addl. Public Prosecutor for the Non-
applicant.
*****
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apl548.16
2
CORAM : A.S. CHANDURKAR, J.
Date on which arguments
were concluded : 24th November, 2017
Date on which judgment
is pronounced : 22nd December, 2017
J U D G M E N T:
01. Admit. Heard finally with consent of Counsel for the parties.
02. The Accused No.1 who is facing Sessions Trial No. 328 of 2015 for the offences punishable under Sections 302, 452, 120-B read with Section 34 of the Indian Penal Code [for short, "the Penal Code"] has filed this Criminal Application under Section 482 of the Code of Criminal Procedure, 1973 [for short, "the Code"] seeking to challenge the order dated 14th July, 2016 passed by learned Judge of the Sessions Court rejecting the application for discharge filed under Section 227 of the Code.
03. Facts relevant for adjudicating the present application are that on 4th January, 2011, First Information Report was lodged by one Sushila Soni in which it is stated that on 3 rd January, 2011 between ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 3 9.30 p.m., and 10.00 p.m., she along with her two sons, Ananta and his younger brother, Pawan, were at home. Ananta was sleeping in one room while the other son was sleeping in the another room. The informant went towards the main gate for putting a lock when two persons with their faces covered asked her whether Ananta was at home. The informant told that he was asleep. At that point of time, one person covered her face with his hand and sought to press her neck. The informant struggled to get herself free and she fell down in that process. One of the two persons entered the house. After some time, both the persons came out of the room of Ananta and ran away. The informant went inside and noticed her son lying injured on the bed. With the help of her younger son and neighbours, said Ananta was sought to be taken for medical treatment. It was, however, found that he had succumbed to the injuries. On this basis, a report came to be lodged.
04. During the course of investigation, the applicant along with four others came to be arrested in connection with said crime. After completion of investigation, a charge-sheet came to be filed on 24 th April, 2015. The applicant was arraigned as Accused No.1. Accused Nos.2, 3, 4 and 5 were Ravnish alias Chintu Pandey, Santosh Ambekar, Maroti Walke and Pradeep alias Balya Wanjari respectively. ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 :::
apl548.16 4 The applicant moved an application under Section 227 of the Code seeking his discharge from the aforesaid crime on the ground that the investigating agency had not collected any incriminating material against him. Only on the basis of vague statements and general suspicion expressed by some witnesses, coupled with the fact that the applicant had issued a notice to the deceased for vacating the premises owned by the applicant, he had been implicated. This application was opposed by the prosecution. Learned Judge of the trial Court prima facie found that the deceased had illicit relations with the wife of the applicant herein. The deceased was not vacating the premises occupied by him. On that basis, it was observed that there was material on record to proceed against the applicant and framed charge against him. Hence, by order dated 14 th July, 2016, that application came to be rejected. Being aggrieved, the applicant has filed the present Criminal Application. It may be mentioned that while issuing notice for final disposal of the application, by an interim order dated 18th August, 2016, further proceedings in the Sessions Trial have been stayed.
05. Shri Sunil Manohar, learned Senior Counsel for the applicant
- Accused No.1, submitted that on consideration of the entire material that forms part of the charge-sheet, it can only be said that the ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 5 accusation against the Accused No. 1 was based on guess work. The statements recorded merely express general suspicion against the Accused No.1. Drawing attention of the Court to the statements of witnesses recorded along with the Test Identification Parade, it was submitted that the allegations against the Accused No.1 were with regard to having hatched a criminal conspiracy for doing away with the deceased. The Accused No.1 was not attributed with the overtact of actually assaulting the victim or committing house trespass. Even if the prosecution is successful in pointing out that the applicant had a motive to do away with the victim, motive by itself was not sufficient to proceed against the Accused No.1 In that regard, the learned Senior Counsel sought to draw support from the observations of the Honourable Supreme Court in its decisions in [1] Surinder Kumar Vs. State of Punjab [AIR 1999 SC 215] and [2] N. J. Suraj Vs. State represented by Inspector of Police [(2004) 11 SCC 346]. Taking the Court through the statements of various witnesses, it was submitted that even if all the statements are taken at their face value, the same fall short of the required ingredients indicating a criminal conspiracy at the behest of Accused No.1. There was no material to indicate the Accused No.1 having conspired with the other accused. Call Detail Records [CDRs] of the Accused No.1 and those of the other accused were also not collected to indicate that they were in contact ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 6 with each other and had conspired to ensure that their common intention of doing away with the deceased was carried out. Accused No.1 was not 'last seen' either with the victim or the other accused persons. Merely on the basis of conjectures, it would not be permissible even to draw a legal inference against the Accused No.1. There was a distinction between realm of conjectures and realm of proof. The material collected was only in the form of conjectures. The learned Senior Counsel referred to the judgment of the Court of Appeal in Jones Vs. Great Western Railway Company [ (1930) All England Law Reports Reprint 830] to buttress this submission.
It was urged that in absence of any sufficient ground for proceeding against the Accused No.1, jurisdiction under Section 482 of the Code could be exercised for discharging said accused. The material on record did not give rise to any reasonable suspicion that the Accused No.1 was connected with the offence in question. Placing reliance upon the decisions in Union of India Vs. Prafulla Kumar Samal & another [AIR 1979 SC 366] as well as State of Karnataka Vs. L. Munishwamy & others [AIR 1977 SC 1489], it was urged that if the material on record gives rise to some suspicion against the Accused No.1 but not grave suspicion, the Court would be fully within its power to discharge the accused. It was, therefore, submitted that the present was a fit case where, in exercise of powers under Section ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 7 482 of the Code, the Accused No.1 deserves to be discharged.
06. Shri K. L. Dharmadhikari, learned Addl. Public Prosecutor for the State, opposed aforesaid submissions. According to him, the material collected by the prosecution was sufficient to proceed against the Accused No.1. The statements recorded indicated that the victim as well as Accused No.1 were partners in business of sale of plots. There were disputes between the partners over sharing of profits from said business. The victim was residing in the house owned by the Accused No.1 which the Accused No.1 wanted him to vacate. The victim had illicit relations with the wife of the Accused No.1 and there were statements to indicate that the Accused No.1 had given threats to the victim. Relying upon various statements recorded by the prosecution, it was submitted that the suspicion against the Accused No.1 was grave in nature and same was sufficient for proceeding against him in the trial. He referred to the CDRs of the conversation between the victim and wife of the Accused No.1. At this stage, the evidence on record was not required to be evaluated and it was also not necessary to examine whether said material was sufficient for convicting the Accused No.1. No roving enquiry was required to be undertaken and the prosecution deserves a chance to prove its case. A detailed analysis of the material on record was also not warranted and, ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 8 therefore, the learned Judge of the Sessions Court having found the material sufficient to proceed against Accused No.1, the challenge to the order passed by the trial Court did not deserve to be accepted. In support of his submissions, reliance was placed on the following decisions:-
[1] Rajiv Thapar & others Vs. Madan Lal Kapoor
[ (2013) 3 SCC 330],
[2] Amit Kapoor Vs. Ramesh Chander & another
[ (2012) 9 SCC 460],
[3] Sheoraj Singh Ahlawat & others Vs. State of Uttar
Pradesh & another [ (2013) 11 SCC 476],
[4] Moin Vairuddin Qureshi Vs. State of Maharashtra
[2009 ALL MR (Cri) 1274],
[5] Satish Nanaji Dhote Vs. State of Mah. [ 2009 ALL
MR (Cri) 345],
[6] Govind Sakharam Ubhe Vs. State of Mah. [ 2009
ALL MR (Cri) 1903],
[7] Roop Kishore Dargar Vs. State & another [ 2005
ALL MR (Cri) 2206],
[8] State Vs. Shri G.N. Agrawal & others [2006 ALL MR
(Cri) 175], and
[9] Noorul Huda Maqbool Ahmed Vs. State of Mah. &
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others [ 2009 ALL MR (Cri) 3256].
07. I have heard the learned counsel for the parties at length and with their assistance, I have also gone through the charge-sheet.
08. Before considering the respective contentions of the learned counsel, it was be apposite to keep in mind the law as laid down by the Honourable Supreme Court in the matter of exercise of jurisdiction under Section 482 of the Code while considering an application for discharge under Section 227 of the Code.
A. When the facts and the ingredients of the Section under which the offence is alleged to have been committed exist, the Court would be right in presuming that there is a ground to proceed against the accused and frame the charge. The satisfaction of the Court in relation to the existence of the constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. At the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence - Amit Kapoor [supra].
B. At the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from, ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 10 taken at their face value, disclose the existence of the ingredients constituting the alleged offece - Onkar Nath Mishra Vs. State [ (2008) 2 SCC 561].
C. Even if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused is fully accepted before it is challenged in cross-examination, or rebutted by the defence, the evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial - State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018].
D. For the purpose of determining whether there is a sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can reasonably be said to be possible - L. Munishwamy [supra].
It is on the touchstone of the aforesaid legal principles that the challenges as raised can be considered.
09. According to the prosecution, the Accused No.1 along with Daliram Sharnagat, Ranjit Gautam, Ananta Soni and Raju Wadhai used to deal in sale of plots since the year 2000-01. They had formed ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 11 Gruhalaxmi Housing Agency in that regard. According to all other partners, an amount of Rs.12,50,00,000-00 was lying with Accused No.1 to which they were entitled. The said four partners had given a report against Accused No.1 on 1 st December, 2010 as the Accused No.1 had abused them and had given life threats. Thereafter, they sought mediation through Accused No.3 - Santosh Ambekar. In a meeting held by said Accused No.3, the Accused No.1 as well as Accused No.2 were present. In that meeting the matter could not be resolved and Accused No.3 is stated to have given a threat to Ananta Soni as per the statement of the mother of Ananta Soni. Accused No.4
- Maroti Walke was an accomplice of Accused No.3 and he had also given threats to Ananta Soni. As per statements of witnesses, on the day of the incident, Accused No.4 was noticed wearing a woolen cap and was roaming near the house of Ananta Soni. As per CDRs, the victim, Ananta Soni used to have conversation with the wife of Accused No.1. Further, Ananta used to reside in the house of Accused No.1. In the year 2007-08, when their partnership came to an end, the Accused No.1 told Ananta Soni to vacate the house premises and had also issued a notice through Court to him. Said Ananta Soni had not vacated the house. In view of aforesaid, the Accused No.1 conspired with the other accused and got Ananta Soni murdered. Accused No.5 - Balya Wanjari was identified by the mother of the victim in the Test ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 12 Identification Parade held on 16th October, 2012. According to the prosecution, Accused No.5 - Balya Wanjari and his accomplice who was not identified trespassed into the house of the victim and committed his murder.
The aforesaid is the accusation against the accused persons by the prosecution.
10. Statements of various witnesses recorded by the prosecution form part of the charge-sheet. On 5 th January, 2011, the statement of the informant - Sushilabai was recorded. She has stated that her son was a member of Gruhalaxmi Housing Agency along with other partners which included Accused No.1. There was a dispute between the partners prior to about three years. She along with her family members were residing in the house owned by Accused No.1. About four months prior to recording her statement, the Accused No.1 had held a meeting at his house in which Accused No.2, the informant and her son Ananta were present. Accused No.1 told her to vacate the house premises, on which the informant said that after an alternate arrangement would be made, they would shift there. The Accused No.1 had issued a notice to her through Court in that regard. About a month-and-half prior to recording her statement, a meeting was held at the house of Accused No.3 - Santosh Ambekar. All partners were ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 13 present therein. After returning from the meeting in which Accused No.2 was also present, the informant's son looked disturbed. She then narrated the incident of assault and according to her, she suspected that Accused No.1 was behind the same. In the supplementary statement, she has reiterated the aforesaid. She further stated that in the meeting of the partners along with Santosh Ambekar, the photograph of her son was seen on the table of Accused No.3. In yet another supplementary statement dated 15 th June, 2012, she has stated that her son did not have any quarrel with any person and it was not possible for her to state as to who was behind his murder. She further stated that Accused No.2 got acquainted to her son because of Accused No.1. About two months prior to the incident, her son had a quarrel with his wife. A reporter by name Sahu had told her son that his wife wanted divorce and, therefore, Ananta should give divorce to his wife. The wife of Ananta used to go out with said Sahu despite being told not to do so. In this statement, she has stated that Accused Nos. 1 and 2 along with Accused No.3 through some other person were likely to have committed the murder of her son. Similarly, the other three partners - Daliram Sharnagat, Raju Wadhai and Gautam were also doubted for getting her son murdered.
These are the statements of the informant recorded by the prosecution.
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11. The statement of the widow of Ananta was recorded in which she stated that a notice had been received from Accused No.1 for having the house vacated. Though in the meetings held between the partners, the Accused Nos. 1 and 2 used to remain present, Accused No.2 was not directly connected with the same. She had a suspicion on Accused Nos. 1 to 3. However, in her supplementary statement dated 18th September, 2012, she has stated that her husband had illicit relations with various ladies and, therefore, she was not sure as to who was behind his murder.
The younger brother of the victim, Pawan Soni, has stated that he had no idea who was behind the murder of his elder brother. However, he expressed doubt on Accused No.1 as well as other partners of Gruhalaxmi Housing Agency. Yet another brother - Sanatkumar Soni expressed doubt on Accused No.1 and the other partners of Gruhalaxmi Housing Agency. He reiterated this statement when it was again recorded on 21 st June, 2012. He further stated that his brother Ananta was addicted to liquor and about a month before the incident, he used to roam around with Accused No.5 - Balya Wanjari. He stated that his brother had told him that he had a dispute with other partners of the Agency excluding the Accused No.1. One of the partners - Daliram Sharnagat was assaulted by Ananta along with ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 15 Accused No.5.
12. The statements of the partners of Gruhalaxmi Housing Agency were also recorded. They have referred to the dispute with the Accused No.1 in the matter of dues to which they were entitled. Statement of Raju Wadhai indicates that the partners other than Accused No.1 had been to the house of Accused No.3. Accused No.2 was called there. In that meeting, Accused No.3 told them that all necessary accounts be placed before him, after which he would see what could be done. In his supplementary statement, he has stated that he was not aware who was behind the murder of Ananta Soni and that the mother of the victim had made false allegations against the partners. In his further statement recorded on 1 st August,2012, he has stated that about six months before the incident, the victim used to consume lot of liquor and used to roam in the company of anti-social elements including Accused No.5. The victim also had a dispute with his elder brother and, therefore, he had a doubt on Accused No.1 as well as the elder brother of the victim, Sanatkumar. The statement of Daliram Sharnagat indicates the meeting of the partners with Accused No.3 in the presence of Accused No.2. He has referred to a report given by the partners against Accused No.1 in the Police Station. In his statement dated 1st August, 2012, he has referred to the altercation ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 16 that he had with the victim. He has stated that Ananta used to roam around with anti-social elements including Accused No.5. He has expressed a doubt against Accused No.1. In his statement recorded on 4th July, 2014, he has stated that he had a quarrel with the deceased sometime prior to the incident. The other partner - Ranjitlal Gautam in his statement dated 1st August, 2012 has stated that the victim used to move around with anti-social elements including Accused No.5. He also refers to a dispute between the victim and one of the partners, Daliram. In his statement dated 10 th July, 2014, he has expressed a doubt on Accused No.1 and elder brother of the deceased, Sanatkumar. The statement of one Baba Raghorte refers to a party held on 31st December in which the victim along with Accused Nos. 2 and 5 were present. In that party, there was a dispute between Accused No.2 and Accused No.5. The victim tried to mediate amongst them and the Accused No.5 had whipped out a knife to assault him.
13. These are the various statements recorded by the prosecution which form part of the charge-sheet. A letter dated 2 nd December, 2010 addressed by the partners of Gruhalaxmi Housing Agency against the Accused No.1 addressed to the Police Station Officer, Kalmna Police Station, is also on record. They have referred to threats being given by the accused no.1 to them in the dispute with ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 17 regard to accounts. Similarly, an undated communication signed by three partners and addressed to accused no.3 for resolving the disputes amongst the partners is also on record. So are the CDRs between the victim and the wife of Accused No.1 on record.
14. As regards the material in respect of criminal conspiracy, it needs to be observed that there cannot be direct evidence as regards hatching of the conspiracy. Same has to be inferred on the basis of illegal acts or omissions committed by conspirators in pursuance of their common design. In Yogesh Vs. State of Maharashtra [ (2008) 10 SCC 394], it has been held that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. There has to be some material from which it would be reasonable to infer a connection between the alleged conspiracy and the act done pursuant to said conspiracy. Reading of all the statements collected by the prosecution shows that there are no statements indicating that Accused No.1 was in communication with Accused Nos. 3,4 and 5. It is the partners of Gruhalaxmi Housing Agency who had approached Accused No.3 for resolution of their disputes and according to the statement of one of the partners, Raju Wadhai, Accused no.3 had told those partners to first place all accounts before the Accused No.3 after which he would ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 18 look into the matter. There are no statements linking Accused No.1 with Accused No.4 or for that matter with Accused No.5 who is said to have actually carried out the assault. In fact, some of the statements also raise a doubt on the other partners as being behind the assault on Ananta Soni. There are no CDRs concerning Accused No.1 or his communication with any of the other accused. Presence of Accused No.2 with Accused No.1 is also not of much consequence. Even for the purposes of drawing some legal inference against accused no.1, the material on record appears to be insufficient. There is also no material in the form of any statements leading to an inference as to criminal conspiracy - qua - Accused No.1. On the contrary, most of the statements indicate that the victim for period of a few months prior to the assault used to remain in the company of Accused No.5 who was identified in the Test Identification Parade by the mother of the victim and who is alleged to have fatally assaulted the victim along with his unidentified accomplice. Thus, the material on record is insufficient even to reasonably infer the meeting of minds of the Accused No.1 with the other accused.
15. Taking all the statements at their face value and without adding or subtracting anything there from, the same would at the highest point out to the motive that the Accused No.1 had for allegedly ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 19 doing away with Ananta Soni. Motive has also been attributed to the other partners excluding the Accused No.1 by the younger brother of the deceased. The informant has also expressed doubt on the three partners excluding the Accused No.1. Motive is attributed to persons other than the Accused No.1.But then, motive by itself would not be sufficient, especially when there is a charge of criminal conspiracy under Section 120-B of the Penal Code against the Accused No.1.
As regards motive, it has been held by the Honourable Supreme Court in State of U.P. Vs. Dr. Sanjay Singh [[1994 Supp (2) SCC 707], mere suspicion of motive cannot serve as a sufficient ground for framing charges in the absence of any material, prima facie showing that a particular motive has passed into action and that the accused is connected with the action in question. In N.J. Saraj [supra], it was observed that mere motive for the commission of an offence by itself is not sufficient in a case based on circumstantial evidence. A similar view has been taken in Surinder Kumar [supra] by observing that in absence of any other proof of circumstances pointing out to the guilt of the accused, the evidence in support of motive for the crime is of no value.
16. Thus, considering the charge-sheet as a whole, I find that the necessary ingredients to attract criminal conspiracy in so far as ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 20 Accused No.1 is concerned are missing. Even if it is assumed that the entire material is to be taken at its face value, the same is found woefully short in that regard. As observed by the Honourable Supreme Court in L. Munishwamy [supra], for the purposes of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. In Onkar Nath Mishra [supra], it was held that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence.
Though it is true as observed in Amit Kapoor [supra], at the stage of framing charge, the Court is not concerned with proof but with strong suspicion that the accused has committed an offence, which if put to trial, could prove him guilty, it has been further observed that for the purposes of framing the charge, satisfaction of the Court in relation to existence of constituents of an offence and facts leading to that offence is a sine qua non for exercise of such jurisdiction. While meticulous examination of the material is not necessary at this stage as held in Satish Nanaji Dhote [supra], basic infirmities and broad ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 ::: apl548.16 21 probabilities can be considered as held in Govind Sakharam Ubhe [supra]. It is also true that the prosecution deserves to be given a chance to unfold its evidence as observed in Noorul Huda Maqbool Ahmed [supra], however, sifting and weighing the material for the limited purpose of finding out if a prima facie case has been made out is permissible as per Roop Kishore Dargar [supra]. In the light of aforesaid and taking an overall view of the matter, I find that a case has been made out at the instance of Accused No.1 to exercise discretion in his favour and allow his application that was filed under Section 227 of the Code.
17. In view of aforesaid, the impugned order passed by the trial Court dated 14th July, 2016 below Exh.16 refusing to discharge the applicant is set aside. Said application is allowed. The applicant stands discharged from Sessions Trial No. 328 of 2015 in which he was being tried for the offences punishable under Sections 302, 452, 120-B read with Section 34 of Indian Penal Code.
18. It is made clear that observations in this order are only in relation to the applicant - Accused No.1 and they shall not be construed as having been made with regard to other accused persons. The trial Court shall proceed with the trial in accordance with law. ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:52:04 :::
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19. The Criminal Application is allowed in aforesaid terms.
Judge
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