Ramlal S/O Visramji Katre vs State Of Maharashtra Through ...
2017 Latest Caselaw 10047 Bom

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          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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                                 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

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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.

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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

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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

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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

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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,

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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19. The Criminal Application is allowed in aforesaid terms.

Judge

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