Bombay High Court
Sau. Ashadevi W/O Jaiprakash ... vs State Of Maharashtra, Through Its ... on 18 November, 2015
Bench: A.S. Chandurkar
revn97.15.odt 1/19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO.97 OF 2015
APPLICANTS: 1. Sau. Ashadevi W/o Jaiprakash Sawal,
Age - 45 years, occ-household,
2. Sau. Mangala W/o Omprakash Sawal,
Age-45 years, Occ-Household,
Both R/o Adarsh Colony, Gourakshan
Road, Akola.
-VERSUS-
NON-APPLICANTS: 1. State of Maharashtra through its
ig Police Station Officer, P. S. Civil
Lines, Akola.
2. State of Maharashtra, through
Superintendent of Police, State CID
(Crimes), Amravati.
Shri Sunil V. Manohar, Senior Advocate with Shri N. R. Tekade Advocate
for the applicants.
Smt. R. Deshpande, Assistant Public Prosecutor for the non-applicants.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 23-09-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 18-11-2015.
ORAL JUDGMENT :
1. Heard finally with the consent of Counsel for the
parties. Perused the documents filed along with the charge-sheet
in Sessions Trial No.70/1999.
2. The present applicants, who are arrayed as accused
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Nos.4 & 5, are facing trial with regard to an offence alleged to
have been committed on 9-12-1998 punishable under Sections
302, 201, 109 read with Section 34 of the Indian Penal Code (for
short, the Penal Code). As per the contents of the first information
report lodged by accused No.1 - Shivprakash Sawal, his wife -
Shantadevi was found in a burnt condition in the store room of the
third floor of their residential house. Said residential house was
occupied by members of the joint family which included the
brothers Jaiprakash - accused No.2, Omprakash - accused No.3
and their wives who are the present applicants as well as one
juvenile - Rachana. It is further stated that said incident occurred
between 5.30 p.m. and 6 p.m. on 9-12-1998. The dead body was
sent for postmortem and on 11-12-1998, a provisional postmortem
report was received in which it was stated that the right femur
bone of the deceased had been broken and there was some
injuries on the right side of the head and hemorrhage in the right
eye. Thereafter, offence was registered under the provisions stated
herein above alleging that the husband of the deceased - accused
No.1 along with members of the joint family had assaulted the
deceased and after murdering her had sought to destroy the
evidence.
3. Subsequently, the final postmortem report was
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received in which it was stated that death was caused due to shock
due to fracture of shaft femur (right) with contusion on right
parietal hemisphere with conjuctinal hemorrhage. After the said
report was received, the Investigating Officer made certain queries
with the Doctors who had conducted postmortem. It was opined
by the Doctors that death was likely to have been caused about 12
to 24 hours prior to conducting the postmortem. The right femur
bone had been broken on account of being hit by a blunt object.
Photographs of an iron rod were also sent to the concerned doctors
and it was opined by them that same could cause fracture of the
femur bone, but injuries on the head were not likely to have been
caused by said weapon. Similarly, excessive bleeding could have
caused shock.
4. In the meanwhile, the investigation of aforesaid crime
came to be transferred to the Crime Investigation Department of
the State. During the course of said investigation, supplementary
statements of various persons came to be recorded. The accused
Nos.1 to 3 applied for discharge from aforesaid trial and the
learned Judge of the Sessions Court rejected their application.
Said accused Nos.1 to 3 had filed Criminal Revision No.115 of
2005. Learned Single Judge by judgment dated 5-4-2010 found
that the chargesheet, statements and the material collected by the
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prosecution was not enough to connect accused Nos.1 to 3 with
the alleged crime. On that basis accused Nos.1 to 3 were
discharged from Sessions Trial No.70/1999.
The present applicants had also applied for discharge
which application was rejected by the trial Court. This order was
challenged in Criminal Revision Application No.26 of 2014. The
learned Single Judge in said revision application found that there
was sufficient material on record to infer that the deceased was in
the custody of the applicants and it was for them to explain as to
how the deceased had died. It was observed that there were
circumstances to indicate that the applicants did not bother to find
out the whereabouts of the deceased. On that basis, this Court
rejected the revision application. Being aggrieved, the applicants
had approached the Supreme Court of India and by order dated
13-5-2015, the applicants were permitted to withdraw the Special
Leave Petition and were permitted to argue on charge before the
Sessions Court. The Sessions Court was directed to consider the
matter on merits without being influenced by the observations
made by this Court in Criminal Revision Application No.26/2014.
5. Pursuant to aforesaid liberty granted by the Supreme
Court, the applicants moved the learned Additional Sessions
Judge. The applicants were heard pursuant to aforesaid orders
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and the learned Additional Sessions Judge came to the conclusion
that the applicants must be having knowledge of the offence.
There was likelihood of involvement in the offence of murder of
the deceased as well as in the matter of destroying the evidence
after the murder. It was observed that though the evidence
appeared to be somewhat short, as the offence was a serious one,
there was prima facie sufficient evidence to frame charge under
Sections 302, 201 and Section 34 of the Penal Code. It is against
this order dated 5-8-2015 passed by the learned Additional
Sessions Judge that the present revision application under Section
397 read with Sections 401 and 482 of the Code of Criminal
Procedure, 1973 (for short the Code) has been filed.
6. Shri Sunil Manohar, learned Senior Advocate for the
applicants submitted that the present is a case in which the
applicants were entitled to be discharged of the offences as
alleged. It was submitted that there was no material whatsoever
collected by the investigation agency even to raise a suspicion
against the applicants. Even assuming that some suspicion could
be raised against the applicants on account of they being members
of the joint family, said suspicion was not grave or serious to
warrant framing of charge so as to enable the Sessions Court to
proceed with the trial against them. Perusal of the charge-sheet
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would indicate that the ingredients of the offences under Sections
302 and 201 of the Penal Code had not been made out. It was,
therefore, submitted that in absence of any grave suspicion against
the applicants on the basis of the material collected by the
prosecution, a case for discharge had been made out. The learned
Senior Advocate then took the Court through the material
collected by the prosecution forming part of the charge-sheet. The
statements of one Vithal Gadhe, Ramdas Pachpor and
Gaurishankar Bundele who according to the prosecution were at
the house of the accused for some period on 9-12-1998 were
referred to. Similarly, the statements of the mother of the deceased
- Jiyabai and her brother - Savaisingh were also referred to. The
spot panchanama was referred to in order to indicate that an open
staircase was available for approaching the third floor of the
building. The seizure panchanama was referred to for indicating
that though it was the case of the prosecution that the deceased
had been assaulted with a blunt object causing fracture of the
femur bone and injuries on the right side of the head, there was no
weapon/blunt object seized as per seizure panchanama. On the
basis of aforesaid material, it was, therefore, submitted that at the
highest, the same could give rise to some suspicion against the
applicants in contradistinction with grave suspicion that was
revn97.15.odt 7/19
necessary for framing charge so as to proceed with the trial against
the applicants. Relying upon the judgment of the Supreme Court
in State of Karnataka v. Muniswamy and others AIR 1977 SC 1489,
it was urged that merely because some material on record could be
said to be available to connect the accused with the crime, the
prosecution could not be permitted to proceed against them. It
was submitted that considering the material available on record,
no purpose would be served by directing the accused to face the
trial. Reliance was also placed on the decision of the Supreme
Court in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj
Bijja and others AIR 1990 SC 1962 to urge that if two views were
equally possible and the material available gave rise to some
suspicion but not grave suspicion, the accused would be entitled
for being discharged. Referring to the discharge of accused Nos.1
to 3 from the trial, it was submitted by relying upon the decision of
the Supreme Court in Hari Dev Sharma v. State (Delhi
Administration) AIR 1976 SC 1489 that the prosecution case was
one integrated story and with the discharge of accused Nos.1 to 3,
the entire premise for proceeding against the present applicants
ceased to exist. It was submitted that though all these aspects
were required to be considered by the learned Additional Sessions
Judge in terms of the liberty granted by the Supreme Court, the
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same had not been given due consideration by the learned Judge.
It was, therefore, submitted that the present was a case in which
the applicants were entitled to be discharged.
7. On the other hand, Smt. R. Deshpande, learned
Assistant Public Prosecution supported the impugned order and
submitted that the material collected by the prosecution gave rise
to grave suspicion against the present applicants and, therefore,
the learned Judge of the Sessions Court was justified in refusing to
discharge the applicants. The learned Assistant Public Prosecutor
referred to postmortem report and submitted that the death had
occurred during day time on 9-12-1998. The statements of Vithal
Gade, Ramdas Pachpor, Lata Gambhirrao and Gaurishankar
Bundele reveal that though aforesaid persons had visited the
residential house on 9-12-1998 at various points of time, they had
not noticed the deceased. It was on this basis that it was
submitted that Shantadevi was not seen during the day time as she
had already been done to death. Reference was made to the spot
panchanama to indicate limited access to the store room on the
third floor. It was submitted that the present applicants were
present at the residential house on said day and therefore their
conduct had been rightly noted by the learned Additional Sessions
Judge while refusing to discharge them. In support of her
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aforesaid submissions, reliance was placed on the decision in
Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135 and
it was urged that there was sufficient material placed on record to
justify continuation of the trial against the present accused.
8. I have given thoughtful consideration to the respective
submissions and I have also perused the material placed along
with the chargesheet. The present is a case where the applicants
seek discharge on the ground that the material available on record
is highly insufficient to even raise a suspicion against them to
permit the trial to proceed against them. Before considering
whether the material available on record gives rise to grave
suspicion against the applicants and whether the ingredients of the
offence with which they have been charged have been made out, it
would be apposite to refer to certain settled principles that are
relevant while considering a prayer for discharge.
(a) State of Maharashtra and others Versus Som Nath
Thapa and others (1996) 4 SCC 659:
"32. If on the basis of material on record, a
Court could come to the conclusion that
commission of the offence is a probable
consequence, a case for framing of charge
exists. To put it differently, if the Court were to
think that the accused might have committed
the offence it can frame the charge, though for
conviction the conclusion is required to be that
the accused has committed the offence. It is
apparent that at the stage of framing of a
revn97.15.odt 10/19
charge, probative value of the materials on
record cannot be gone into; the materials
brought on record by the prosecution has to be
accepted as true at that stage."
(b) State of Maharashtra Versus Priya Sharan Maharaj and
others (1997) 4 SCC 393:
"8........................................................................
At the stage of framing of the charge the Court
has to consider the material with a view to find
out if there is ground for presuming that the
accused has committed the offence or that there
is sufficient ground for proceeding against him
and not for the purpose of arriving at the
ig conclusion that it is not likely to lead to a
conviction."
(c) State of Maharashtra Vs. Salman Salim Khan and
another (2004) 1 SCC 525:
"12. We are of the opinion that though it is
open to a High Court entertaining a petition
under Section 482 of the Code to quash charges
framed by the trial court, same cannot be done
by weighing the correctness or sufficiency of
evidence. In a case praying for quashing of the
charge, the principle to be adopted by the High
Court should be that if the entire evidence
produced by the prosecution is to be believed,
would it constitute an offence or not. The
truthfulness, the sufficiency and acceptability of
the material produced at the time of framing of
charge can be done only at the stage of trial.......
(d) State of Delhi Vs. Gyan Devi and others (2000) 8 SCC
239:
"7........................................................................
The legal position is well settled that at the
stage of framing of charge the trial Court is not
to examine and asses in detail the materials
placed on record by the prosecution nor is it for
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the Court to consider the sufficiency of the
materials to establish the offence alleged
against the accused persons. At the stage of
charge the Court is to examine the materials
only with a view to be satisfied that a prima
facie case of commission of offence alleged has
been made out against the accused persons. It
is also well settled that when the petition is
filed by the accused under Section 482 CrPC
seeking for the quashing of charge framed
against them, the Court should not interfere
with the order unless there are strong reasons
to hold that in the interest of justice and to
avoid abuse of the process of the Court, a
charge framed against the accused needs to be
ig quashed. Such an order can be passed only in
exceptional cases and on rare occasions. It is to
be kept in mind that once the trial Court has
framed a charge against an accused the trial
must proceed without unnecessary interference
by a superior Court and the entire evidence
from the prosecution side should be placed on
record. Any attempt by an accused for
quashing of a charge before the entire
prosecution evidence has come on record
should not be entertained sans exceptional
cases."
In the light of aforesaid legal position, the facts of the
case can now be examined.
9. It would be necessary to consider the final report
submitted under Section 173 of the Code and the material sought
to be relied upon by the prosecution. To begin with, the
provisional postmortem report dated 10-12-1998 can be referred
to. Column No.17 of said report indicates two injuries on the body
of the deceased. The first injury is 100% superficial to deep burns.
revn97.15.odt 12/19
The second injury is conjuctival haemorrhage from right eye. As
per column No.18, the other injury discovered was right shaft
femur seen with naked eye. As regards injury No.1, it has been
stated that the burns were 'postmortem' and injury No.2 was
antemortem. Another injury is contused right parital hemisphere
at 4 cm x 4 cm area. The cause of death as stated is due to shock
due to fracture shaft femur (Rt) with contusion on (Rt.) parital
hemisphere with conjuctival haemorrhage in right eye with Post
Mortem burns. During the course of investigation, the prosecution
had made certain queries and had sought opinion from the team of
Doctors that had conducted the postmortem. Question No.5 dated
25-8-1999 was as to whether the injuries on the head of the
deceased could have been caused by the weapon shown in the
photograph. The answer given to aforesaid question was that the
injuries shown on the head of the deceased were not caused by the
weapon shown in the photograph.
10. During the course of investigation, the Crime
Investigation Department to whom the investigation was handed
over submitted its report. In said report which is at page 175 of the
record, there is a reference to the deceased being hit by an iron
rod on the right thigh resulting in a fracture. There is reference to
a photograph indicating an iron rod and blood stains found at the
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spot. This iron rod was not seized as is clear from the list of items
that were recovered by the prosecution during the course of
investigation.
11. Reference may be made to the statements recorded by
the prosecution. Statement of one Vitthal Gadhe indicates that on
9-12-1998, his wife had been admitted at the Nursing Home of one
Dr. Nikhte. This Nursing Home was near the house of the accused.
It has been further stated that between 5 to 5.15 p.m. when his
wife was taken to the delivery room, he was told to bring Tulsi
leaves and, therefore, he went to the neighbouring house of the
accused. He saw one lady aged about 25 to 26 years who
permitted him to pluck Tulsi leaves. He noticed one lady and a
girl standing near the gate and he could also hear the sound of
the television and of children speaking. He has further stated that
after plucking the leaves, he went back to the Nursing Home. After
about 20 to 25 minutes, he noticed some ladies looking to the
house of the accused and he went there. He saw the two ladies of
the family and one girl going on the staircase. He and his relative
went near the gate leading to the staircase when the girl came
running down and stated in a frightened voice that her aunt had
been burnt. He has referred to what transpired thereafter including
intimating the husband of the deceased. After the husband of the
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deceased came home, he followed him to the third floor and found
the deceased with her clothes burnt.
In his supplementary statement recorded thereafter, he
has reiterated the earlier statements recorded and has also stated
that while entering the house, he found two ladies who are the
present applicants and a girl climbing down the stairs in a
frightened state.
12. Another statement recorded is of Ramdas Pachpor who
was doing household work with the accused. He has stated that on
9-12-1998, he had done his daily chores. In the afternoon at 4.30
p.m., he was called for having a cup of tea and he did not notice
the deceased at that time. At 5.30 p.m. he took the children to the
tuition class and after returning back, he was told to call the
children. He has further stated that he had not heard any
arguments between the family members.
The statement of one Lata Gambhirrao who was doing
work of washing clothes and utensils was also recorded. She
stated that on 9-12-1998, she noticed the applicants herein, but
did not notice the deceased between 6 a.m. to 9.30 a.m. Even in
the afternoon when she had returned, she did not notice the
deceased.
13. The statement of one Gaurishankar Bundele who was a
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washer-man was also recorded. He stated that at about 9.45 a.m.
on 9-12-1998, he had gone to the house of the accused for
collecting clothes for ironing the same. He did not notice the
deceased as well as the applicant No.2 or Ku. Rachana. This
witness has referred to noticing arguments between the husband
of the deceased, the deceased and the applicants about fifteen days
to one month prior to the incident. After four to eight days, he had
noticed the deceased sitting by the side weeping. His
supplementary statement was also recorded.
14. The statement of the mother of the deceased was also
recorded in which she has stated that about one year prior to the
incident she had met her daughter who had stated that she was
required to do all the house work. The statement of her brother
Savaisingh was also recorded and he has stated that his sister
would not be taken by her husband to various functions and he
used to remain at his shop for most of the times. The deceased
was required to do all the house work.
15. As per the law referred to herein above, it would not
be permissible to weigh the correctness or sufficiency of evidence
at this stage. Similarly, its truthfulness and acceptability is an
aspect to be considered at the trial. What is to be seen after
perusing the material is whether a prima facie case of commission
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of the offence is alleged have been made out.
Considering the entire material available on record in
the form of statements as well as supplementary statements
coupled with the postmortem report, it can be seen from the
supplementary statement of Vitthal Gadhe that he had seen the
present applicants as well as accused No.6 in the evening of 9-12-
1998 coming down from the stairs in a frightened state. To same
effect is the statement of Anil Sapkal who was with Vithal Gadhe
on 9-12-1998. The statement of Suresh Gadhe indicates that when
he along with same police constables reached the site of the
incident, he had noticed the burning fire where the body of the
deceased was found which was subsequently put out by said police
constables and members of the public.
16. These statements on being taken at their face value do
give rise to a grave suspicion as regards the presence of the present
applicants in the house just prior to the fact of Shantabai being
found dead. The applicants were seen climbing down the stairs
after which Shantabai had been found dead with her corpse
burning.
In short, it can be said that there was material on
record to prima facie indicate involvement of the applicants on the
basis of which the trial could proceed against them. As observed
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in State of Delhi (supra) once the trial Court has framed charge
against the accused, the trial must proceed without unnecessary
interference by a superior Court and the entire evidence from the
side of the prosecution should be placed on record. A plea for
quashing of charge before the entire prosecution evidence has
come on record should not be entertained in the absence of any
exceptional case. The question is not whether the charge as
framed can be brought home by the prosecution, but whether
there is material on record giving rise to grave suspicion against
the accused. The presence of the applicants having been found in
various statements coupled with the fact as they were seen
descending the stairs in a frightened state, it would be for the
applicants to explain the charge against them. The fact that the
investigation was subsequently handed over to the Crime
Investigation Department also explains various details in the
supplementary statements of witnesses whose statements had been
earlier recorded. This aspect of further details being found in
supplementary statements has been recognized by the Supreme
Court in Radhey Sham Vs. Kunj Behari and others 1989 Supp (2)
SCC 572.
17. Though it was urged that the learned Judge of the
Sessions Court had not sifted the evidence before rejecting the
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prayer for discharge, on consideration of the entire material on
record, I am satisfied that the same when taken at its face value
gives rise to grave suspicion against the applicants which has not
been properly explained. The present cannot be said to be a case
wherein the material on record gives rise only to some suspicion,
but not grave suspicion. After considering the observations of the
Supreme Court in State of Karnataka, Niranjansingh Karansingh
Pajnabi (supra), the present is not found to be a case warranting
discharge of the present applicants. Two views are not possible on
the basis of the material on record.
As regards the prosecution case being one integrated
story involving six accused, at this prima facie state, the discharge
of the accused Nos.1 to 3 would not be a factor relevant for
discharging the present applicants. The discharge of accused Nos.1
to 3 as reflected from the order dated 5-4-2010 in Criminal
Revision No.115/2005 was on the basis of absence of male
members from the house on the date of the incident took place. In
fact, the material on record prima facie reveals actual presence of
the applicants in the house when the incident occurred. The
observations of the Supreme Court in Harideo Sharma (supra),
therefore, do not assist the case of the applicants.
18. Thus, taking an overall view of the matter, I am
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satisfied that no case warranting discharge of the present
applicants from the trial has been made out. There is prima facie
material on record to proceed with the trial against the applicants.
I am, therefore, not inclined to exercise jurisdiction under Section
482 of the Code in favour of the applicants. The Criminal Revision
Application, therefore, stands dismissed with no order as to costs.
19. At this stage, the learned Counsel for the applicants
prays for continuing the interim relief that was granted on 23-9-
2015.
In the facts of the case, the interim relief granted shall
continue to operate for a period of six weeks from today. Order
accordingly.
JUDGE
//MULEY//
