Nagnath Manikrao Kushnure vs The State Of Maharashtra And ...
2003 Latest Caselaw 119 Bom

JUDGMENT

N.V. Dabholkar, J.

1. This is an application for bail in connection with the offence under Section 302 of the Indian Penal Code (IPC) registered as Cr. No. 37 of 1997 with Sonkhed Police Station, Taluka Loha, District Nanded.

2. With the passage of time, the petition, although for bail, has some peculiar features of its own. The incident in question had taken place on 1.7.1997 at about 8.30 or 9 a.m. There is no dispute that as many as 33 persons were arrayed as accused. According to prosecution story, these persons chased deceased Babarao Dhonde, while he was walking on the road. Babarao entered the house of witness Manik in order to save himself but the assailants entered the house and Babarao was consigned to death with severe attack resulting into as many as 23 injuries including 20 incised injuries and two fractures, of parietal bone and frontal bone. As many as 27 persons were arrested and others were reported to be absconding. Arrested persons were tried by the learned Additional Sessions Judge, Nanded vide Sessions Case No. 185 of 1997, which ended in acquittal of all the accused persons by judgment and order dated 5th and 7th of October 2002.

Applicant is said to have been arrested on 15.9.2002, probably after conclusion of evidence of all the witnesses for the prosecution in Sessions Case No. 185 of 1997 and therefore, a separate charge sheet is submitted as against him, which is now registered as Sessions Case No. 137 of 2002 after committal by the learned Magistrate on the same day i.e. on 16.9.2002.

3. It must also be recorded here itself that the State has preferred Criminal Appeal No. 52 of 2003 against the judgment of acquittal, which would be considered for admission by a Division Bench of this Court. Original complainant Kailas has also filed Criminal Revision Application No. 347 of 2002 challenging the legality, propriety and correctness of the said judgment of acquittal.

On the basis of the first information report (FIR) lodged by one Ramrao, who was accused in the present case (S.T. No. 185/1997), offence was registered against 13 persons of present prosecution side and that case was also tried by the same Judge, as Sessions Case No. 216 of 1998 and disposed of by separate judgment dated 7.10.2002, ending in conviction of 6 persons for the offence punishable under Section 307 of IPC. Six convicted persons have preferred Criminal Appeal No. 607 of 2002 against the conviction and Ramrao has filed Criminal Revision Application No. 7 of 2003 against the adequacy of sentence.

4. Heard learned counsel for the parties. None of the lawyers have disputed the fact that two cases referred hereinabove are not the only cases between the parties. There had been long standing enmity and previous prosecutions including for the offences of murder and attempt to commit murder, as could be seen from the observations in the judgment of acquittal.

5. It was submitted by Advocate Shri Shrma, for applicant, that his client is described by the prosecution witnesses, even if their evidence is to be taken at par with the police statements recorded as part and parcel of the mob and no overt act is attributed to him. Even before the trial Court, no witnesses had turned hostile and although all witnesses stuck to their police statements, the learned Judge has recorded an acquittal, which according to Shri Sharma is a circumstance favouring the grant of bail to the applicant.

Shri Sharma also referred to cross complaint and claimed that two of the accused, namely; Ramrao and Rajaram were fatally injured. They had approached the police station and lodged complaint and therefore, they could not have been present at the time of the alleged incident. Shri Sharma by conceding willingness to abide by any conditions on behalf of the petitioner prayed for grant of bail.

6. Learned APP has opposed the grant of bail by contending that trial of applicant is a fresh trial and acquittal of 27 accused persons earlier will not give any advantage to applicant, at the stage of praying for bail. He must be treated at par with any accused / under trial claiming bail and if the prosecution has prima facie evidence against him linking him to an offence punishable with capital sentence, the application deserves to be rejected. Apart from this submission, learned APP also relied upon the observations of the learned Additional Sessions Judge, who has rejected the application for bail in the recent past. According to learned APP, applicant was absconding till he was arrested on 15.9.2002 and prosecution is willing to present record before this Court about the efforts made to secure arrest of remaining 6 accused persons including applicant. According to learned APP the argument that he was very much in the village deserves to be rejected.

Taking into consideration the fact that applicant was absconding for last five years and the dagger drawn relationship of the parties, possibility cannot be ruled out that, he may not be available for the trial if enlarged. Learned APP also expresses an apprehension that the witnesses may not depose against him, if he is enlarged on bail. Learned APP, therefore, urged for rejection of the application.

7. Although the matter was fixed for final hearing on 24.1.2003, it was deferred in order to enable both the lawyers to search for the precedent and lawyers of both the sides today submitted that they have not been able to lay hands on judicial pronouncement, wherein acquittal of co-accused persons while considering the bail plea of under trial co-accused was required to be considered. The question, therefore, arises as to how much weight should be given to the acquittal of co-accused persons.

8. While making his submissions, learned APP has relied upon the police statements of some witnesses. The judgment of acquittal of co-accused by itself cannot be termed as guarantee of acquittal for applicant also, but there may be certain circumstances in which the evidence relied upon by learned APP, in order to claim that there is prima facie case against applicant, may become unavailable for the prosecution to support such an argument. For example; if a particular witness is tried to be relied upon in order to propound that he provides a link between applicant and the offence alleged, but in the judgment of acquittal in the concluded trial of co-accused, the witness is disbelieved with emphatic reasons, such as his total absence at the spot or in the village at the material time, the prosecution may not be in a position to oppose the bail plea by relying upon the police statement of such a witness. There may be various reasons as to why the witnesse or evidence may be disbelieved and it will vary from case to case, in the light of facts and circumstances of each case, when observations of the trial Court in the concluded trial should prove to be an impediment against the prosecution relying upon the police statement of that witness or against relying upon a particular piece of evidence, pressed into service for opposing the bail plea ? If the rejection of particular piece of evidence by the trial court is for so obvious and emphatic reason that the same is unlikely to be dislodged by the appellate court during re-appreciation of evidence, while hearing the appeal, it may be open for applicant to claim that let prosecution not rely upon this piece of evidence to oppose his bail plea. Although it is open for Advocate Shri Sharma to claim some support from the fact that 27 co-accused, who were tried as under trial prisoners are acquitted, taking into consideration the fact that State and complainant have challenged the judgment by appeal and revision respectively, it cannot be ignored that the judgment of the trial court is not a final judgment. If the judgment has reached finality by absence of any challenge or dismissal of appeal, plea to rely upon the judgment of acquittal of co-accused tried earlier may be standing on better and sound footing. In the present matter, the judgment of the trial court is yet not the final judgment in the matter.

9. Respective lawyers have taken me through as much part of the judgment as possible, although cursorily. It may not be incorrect to describe the judgment as a judgment of benefit of doubt and not a judgment of clean acquittal. In this context, observations in para No. 112 of the judgment of the trial court can be said to be summing up of the reasons. The Judge has concluded by saying, "Under such circumstances, I find that the prosecution case being doubtful cannot be accepted."

It appears that the learned Judge has felt the prosecution story to be suspicious because Ramrao and Rajaram were at Police Station at 9.15 a.m. probably to record their complaint. If the incident had taken place sometime around 8.30 or 9.00 a.m., according to the deposition of Police Sub Inspector referred in the judgment, location to police station is a distance of about 10 to 15 minutes driving.

In paragraphs 74 to 85 of the judgment, the learned Judge has compared evidence of witnesses and referring to the contradictions interse has found the evidence to be doubtful / unreliable. He has also recorded doubts about the presence of some witnesses. However, we have not been able to lay hands on a specific finding, either to the effect that this is a false case or to the effect that some witness is certainly absent from the spot or village. It can certainly be said that the judgment being a judgment of benefit of doubt, cannot be said to be a guarantee that applicant is entitled to acquittal.

10. While trying to refer to the police statements and evidence of the prosecution in order to support his arguments, that the prosecution has prima facie evidence to link applicant to the offence of murder of Babarao, learned APP has relied upon evidence of Mohan (PW 2), Ramu (PW 4), Pandurang (PW

7) and Shankar (PW 13). He has also relied upon the police statement of Govind (PW 5). Although this witness is examined in the earlier trial he is examined only as a panch witness and not as an eye witness. He has also relied upon statements of two more witnesses, namely; Kisan and Maroti. These persons were not examined during the Sessions Case No. 185 of 1997. Excluding the evidence of prosecution witnesses Mohan, Ramu, Pandurang and Shankar, because they were disbelieved while concluding the Sessions trial No. 185 of 1997, learned APP points out that Govind has marked presence of applicant (Nagnath) and he has also accused applicant of having dealt blow with katta (chopper) to the victim. Kisan has also narrated that applicant had dealt the victim by means of katta. Both these witnesses had seen the victim running away in an attempt to escape and ultimately being assaulted. Statement of Maroti is also to the same effect. Thus, the prosecution has atleast as many as 3 eye witnesses, who are not tested during the previous trial nor rejected. The defence may have a benefit of pinning down the witnesses already examined to their previous statements, the prosecution would be compensated by an opportunity to examine the witnesses who were then not examined, feeling that evidence of some of the eye witnesses was sufficient. Therefore, this is not a case, wherein it can be said that there is no evidence to link applicant with the offence punishable with capital sentence. Even considering the judgment of acquittal of co-accused persons, fact remains that prosecution has witnesses with it, who were not then tested and discarded.

11. Further, on referring to the order passed by the learned Additional Sessions Judge, he has taken into consideration the fact that applicant was absconding for as many as five years. It was argued by Advocate Shri Sharma that accused was very much in the village. I am afraid, such an argument is not available to Shri Sharma as sustainable argument. The relations between parties are daggers-drawn and if he would have been present in the village, his presence would have been certainly brought to the notice of police by opposite party. When police had effected arrest of as many as 27 persons out of 33, ordinarily presumption must be drawn in their favour that others could not be arrested inspite of reasonable efforts. Applicant, therefore, must be said, was absconding till he was arrested. As rightly argued by learned APP, this by itself would be sufficient to reject his bail plea.

12. Lastly, in view of the relations between two parties, and parties and witnesses being residents of the same village and knowing each others by names and faces, probability of tampering of the evidence also cannot be ruled out. The application, therefore, will have to be rejected and is accordingly rejected.

13. At this stage, Shri Sharma, Advocate for applicant points out that the matter was fixed by trial Court for evidence today and the same is adjourned at the request of prosecution for appointment of Special Prosecutor. He expresses apprehension that this trial may also linger for years as the previous trial took nearly five years for completion. Since the bail application is being rejected, the Sessions Judge concerned should take appropriate steps to expedite the trial.