Bombay High Court
Rajdeep S/O. Mohan Gedam And ... vs State Of Maharashtra Thr. P.S.O. ... on 30 January, 2018
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.882/2017
1. Rajdeep s/o Mohan Gedam,
aged 30 years, Occ. Labour,
r/o Rama Nagar, Kamptee,
P.S. Kamptee, Tq. Kamptee,
Dist. Nagpur.
2. Sandeep s/o Mohan Gedam,
aged 33 years, Occ. Contractor,
r/o Rama Nagar, Kamptee,
P.S. Kamptee, Tq. Kamptee,
Dist. Nagpur, at present detained
in Nagpur Central Jail, Nagpur. .....APPLICANTS
...V E R S U S...
State of Maharashtra through
P.S.O. Kamptee, Nagpur. ...NON APPLICANT
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Mr. N. T. Gwalbanshi, Advocate for applicants.
Mr. M. K. Pathan, A.P.P. for non applicant-State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 30.01.2018
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of the learned counsel for the parties. Heard Mr. N. T.
Gwalbanshi, Advocate for applicants and Mr. M. K. Pathan, A.P.P.
for non applicant-State.
2. By the present application, the applicants are
challenging the orders dated 07.12.2017 and 05.12.2017 passed
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by the learned Additional Sessions Judge-9, Nagpur below Exhs.-
239 and 240 respectively in Sessions Trial No.198/2011 dated
07.12.2017.
3. By order below Exh.-239, the learned trial Court
rejected the application filed on behalf of the present applicants
for issuance of summons to the defence witnesses. By rejecting
the application Exh.-240, the learned Additional Sessions Judge
has refused to accede to the prayer made by the applicants for
recalling of prosecution witnesses for further cross-examination.
4. According to the learned counsel for the applicants,
both these orders are erroneous. He submitted that the Court
below ought to have allowed these two applications. He
submitted that for just decision of the sessions trial, consideration
of these two applications in favour of the applicants is absolutely
necessary.
5. Insofar as the application Exh.-240 is concerned, he
submitted that the applicants want to recall those prosecution
witnesses whose names are mentioned in the application since
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those prosecution witnesses have not supported the prosecution in
another sessions trial. He further submitted that by not allowing
the application Exh.-239, proper opportunity to the applicants is
not afforded by the learned Sessions Court to prove their case. He
relied on two decisions in Sudevanand Vs. State, through CBI,
reported in 2012 CRI.L.J. 1320 and Wasudeo s/o Gulabrao
Dhoke Vs. State of Maharashtra; reported in 2017 ALL MR (Cri)
4117 to substantiate his claim.
6. Per contra, the learned A.P.P. would submit that
rejection of the application Exh.-240 is absolutely right in view of
the decision of the Division Bench of this Court in Mohan @
Mohan Baba s/o Janglu Gedam Vs. State of Maharashtra,
reported in 2017 ALL MR (Cri.) 1761. Insofar as application
Exh.-239 is concerned, Mr. Pathan, learned A.P.P. submitted that
the order passed below the same has its own infirmity and
therefore this Court should pass appropriate orders.
7. It would be useful to record few facts for deciding the
present application.
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(a) On 27.01.2011 in a ghastly incident at
Kamptee, one Chotu Yadav lost his life.
The incident was reported by one Abhishek
Yadav to Police Station, Kamptee. Since the said was
disclosing commission of a cognizable offence, Police
Station Officer, Kamptee registered the said FIR vide Crime
No.20/2011 under the relevant provisions of the Indian
Penal Code.
(b) The investigating officer completed the entire
investigation. Needless to mention that 9 persons were
rounded during the course of investigation.
The investigator filed the final report against 9
accused persons whereas against one Sandeep Damghaye,
charge-sheet was filed under Section 299 of Code of
Criminal Procedure since the said accused was absconding.
The present applicants were shown as accused
nos.2 and 3 in the final report submitted by the
investigating officer in respect of Crime No.20/2011.
(c) Since the offence was exclusively triable by the
Court of Sessions, the learned Magistrate in whose Court
the final report was presented passed the order of
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committal and committed the case to the Court of Sessions.
After the committal, the case was registered as
Sessions Trial No.198/2011 and was allotted to the file of
Additional Sessions Judge-13, Nagpur.
(d) Accused nos. 1 to 9 including the present
applicants were charged by the learned trial Court for
committing the offence. The charge was explained to
them. They abjured their guilt and claimed for their trial.
Needless to mention here that since the charge-
sheet against Sandeep was filed under Section 299 of the
Cr.P.C., his trial was separated.
(e) In order to bring home the guilt of the accused
persons who were charged in Sessions Trial No.198/2011,
the prosecution examined in all 20 witnesses.
(f) After prosecution evidence was over, accused
nos. 1 to 9 including the present applicants were examined
by the learned trial Court under Section 313 of the Cr.P.C.
(g) On 25.07.2013, accused nos. 1 to 9 were
convicted by the learned trial Court for the offence
punishable under Section 147, 148, 302 read with Section
149 of the IPC and Sections 4 and 25 of the Arms Act. The
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jail sentence for life was awarded against the accused nos.1
to 9 including the present applicants.
Since the accused no.10-Sandeep was
absconding, the trial Court directed the investigating
machinery to file supplementary charge-sheet against him
after he being traced out.
(h) After the judgment and order of conviction
dated 25.07.2013 against accused nos.1 to 9, the
absconding accused no.10 Sandeep alias Banti was
apprehended on 09.10.2013. Separate charge-sheet was
filed against him and his case was also committed to the
Court of Sessions and the said trial was registered as
Sessions Trial No.484/2013. He also abjured his guilt and
claimed for his trial.
In order to bring home the guilt of Sandeep, the
prosecution has examined in all 12 witnesses.
(i) On 16.12.2016, the learned trial Court also
convicted Sandeep alias Banti and awarded jail
imprisonment for life.
(j) All 10 convicted accused filed six separate
appeals before this Court. Those were registered as
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Criminal Appeal No.439/2013, 442/2013, 483/2013,
502/2013, 453/2014 and 475/2016.
(k) All these appeals were taken up for final
hearing before the Division Bench of this Court (Coram: B.
R. Gavai and I. K. Jain, JJ.). These six appeals were
decided and disposed of by judgment dated 23.03.2017 in
Wasudeo s/o Gulabrao Dhoke Vs. State of Maharashtra;
reported in 2017 All MR (Cri) 1761.
It will be necessary to reproduce paragraph 19
of the judgment delivered by Division Bench and it is
reproduced as under:
"19. In the above premise, we are of the view that
accused are not entitled to acquittal on the ground of
non- compliance with the mandatory provisions of
Section 313 of Cr.P.C. We agree to some extent that
appellants are prejudiced on account of a joint
questionnaire put to each of them just by copy paste. The
trial court should have been more careful in framing the
questions considering the incriminating circumstances
brought on record against each of the accused. Since the
Trial court has failed in it's imperative duty, we find it fit
to direct the retrial from the stage of recording
statements of the accused under Section 313 of Cr.P.C.
and proceed to pass the following order :
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(i) Conviction of appellants under Sections 147
r/w 149, 148 r/w 149 and 302 r/w 149 of the Indian
Penal Code and Sections 4 r/w 25 of the Indian Arms Act
and sentenced imposed on them is set aside.
(ii) Matters are remanded back to the trial Court
for proceeding afresh from the stage of recording
statements of the accused under Section 313 of the Code
of Criminal Procedure.
(iii) The Trial court shall examine each of the
accused afresh under Section 313 of the Code of Criminal
Procedure in the light of the above observations and in
accordance with the law.
(iv) The Trial court is directed to put specific,
distinct and separate questions with regard to
incriminating circumstance appearing against each of
the accused.
(v) Appellants are in jail since 2012. Hence, Trial
court to expedite the matter and dispose of the same in
accordance with the law preferably within a period of six
months from the date of receipt of copy of this judgment.
(vi) We make it clear that we have not expressed
any opinion on merits of the matters.
(vii) Criminal Appeals are disposed of in the above
terms."
8. Thus, from the aforesaid, it is clear that the conviction
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awarded against the said accused persons including the present
applicants was set aside and the matter was remanded back to the
trial Court for decision afresh from the stage of recording of
statement of accused under Section 313 of the Cr.P.C. The trial
Court was directed to examine each of the accused afresh in the
light of the observations made in the judgment of the Division
Bench. It was directed to the trial Court that the trial Court shall
put specific, distinct and separate questions with regard to
incriminating circumstances appearing against each of the accused
persons. While disposing of those six criminal appeals, it was
made clear by the Division Bench that the Court has not expressed
any opinion on merits of the matter.
9. Thus, after remand, Sessions Trial No.198/2011 was
taken up by the Additional Sessions Judge-9, Nagpur. In view of
the directions given by the Division Bench in Mohan @ Mohan
Baba's case, each of the accused was examined by the trial Court
under Section 313 of the Cr.P.C. including the present applicant.
10. It is not the claim of the present applicant that their
statements under Section 313 Cr.P.C. were not recorded in
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accordance with law in defiance of the directions given by this
Court in Mohan @ Mohan Baba's case cited supra.
After recording of their statements under Section 313
Cr.P.C. the present applicants filed three different applications viz;
(I) Exh.-239, an application for issuance of summons to
the defence witnesses namely; (a) Sevak Gaurishankar Meshram,
(b) Shobha w/o Santosh Sanpate and (c) Vandana w/o Sewak
Meshram as their defence witnesses.
(II) Exh.-240, an application under Section 311 Cr.P.C. for
recalling of the witnesses for their further cross-examination. The
witnesses sought to be recalled were; (a) Vishal Waman
Shambharkar (PW5), (b) Kishor Ganpat Chankapure (PW8) and
(c) Radheshyam Maniklal Pandey (PW13)
(III) Exh.-241, an application for issuance of summons to
Golu Yadav as defence witness of the applicants.
11. All these applications were contested by the learned
A.P.P. who is incharge of Sessions Trial No.198/2011. Exh.-240
was decided by the learned trial Court on 05.12.2017 and the said
application was rejected.
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Exh.-241 was decided on 06.12.2017 and the said
application was allowed
Exh.-239 was decided on 07.12.2017 and it was
rejected.
Thus the applicants being aggrieved by the rejection of
Exhs.-239 and 240 are before this Court by invoking jurisdiction of
this Court under Section 482 as well as Section 397 of the Cr.P.C.
12. There cannot be any dispute in respect of the principles
laid down in Sudevanand Vs. State, through CBI, cited supra.
Counsel for the applicant, though placed reliance on this decision
to buttress his submission, in my view, it is of little use to him
inasmuch as that though powers of the Court under Section 311 of
the Cr. P. C. are vast, at the same time those powers have to be
exercised by the Court below by applying the principles
enunciated in Sudevanand Vs. State, through CBI, cited supra to
the given set of facts.
13. As observed above, after remand from this Court, the
statements of the applicants are duly recorded by the learned
Sessions Court under Section 313 of the Code of Criminal
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Procedure. Also, it is not the grievance of the applicants that the
learned Sessions Judge has faulted with the direction given by the
Division Bench at the time of recording of their statements under
Section 313 of Cr.P.C. afresh after the remand.
14. Insofar as Exh.-240 is concerned, according to the
applicants, Vishal (PW5), Kishore (PW8) and Radheshyam (PW13)
when were examined in Sessions Trial No.198/2011, they fully
supported the prosecution case. However, they did not support
the prosecution in Sessions Trial No.484/2013. According to the
applicant, Vishal (PW5) and Kishore (PW8) did not support the
prosecution at all in Sessions Trial No.484/2013 whereas
Radheshyam (PW13) partly supported the prosecution. In view of
this position, it is the statement of the learned counsel for the
applicants that these three witnesses needs to be recalled for their
fresh cross-examination in Sessions Trial No.198/2011, which the
applicants are facing.
15. Vishal (PW5), Kishore (PW8) and Radheshyam (PW13)
were examined by the prosecution in Sessions Trial No.198/2011.
They fully supported the prosecution case in respect of the
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murderous assault in which Chotu Yadav lost his life on
27.02.2011. The opportunity was granted to the defence namely;
the present applicants, to cross-examine these three prosecution
witnesses. They were thoroughly cross-examined by the defence.
It is not the case of the applicants that the opportunity was not
given to them for cross-examining these three persons. It is also
not the case of the present applicants that something was
remained to be done when they were cross-examined due to
inadvertence. It is the submission of counsel for the applicants that
the applicants want to cross-examine these three witnesses afresh
because they changed their version in subsequent Sessions Trial
No.484/2013 and for that they want that the Court should recall
them.
16. After remand, both Sessions Trial Nos.198/2011 and
484/2013 are now being taken up by Additional Sessions Judge-9,
Nagpur. The evidence of these three prosecution witnesses in both
the sessions trials are available with the learned Sessions Judge.
17. In my view, recalling of these three witnesses is not at
all essential only because they are changing their versions. As per
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the decision in Mohan @ Mohan Baba's case cited supra, the
conviction and sentence imposed upon the present applicants is
already set aside by this Court meaning thereby the Court has
appreciated the available evidence as brought on record by the
prosecution afresh. While disposing of Mohan @ Mohan Baba's
case, it is specifically observed that the Division Bench of this
Court has not expressed anything on merit of the case. Thus, the
Additional Sessions Judge has to appreciate the available evidence
of the prosecution in these trials.
18. The trial Court will have to apply its mind
independently and afresh while evaluating the entire prosecution
case including the evidence of Vishal (PW1), Kishore (PW8) and
Radheshyam (PW13). While evaluating their evidence, the learned
trial Court has to see what weightage should be given to the
evidence of these three persons. Therefore, in my view, recalling
of these three witnesses is not at all necessary. Criminal Appeals
of the present applicants were remanded back from the stage of
recoding of the statements under Section 313 of the Cr.P.C. If the
application Exh.-240 is considered favourably then it would result
into reopening of the prosecution case though in part in respect of
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the examination of those three witnesses and for that the matter
was not remanded. Therefore, in my view, the application Exh.-
240 for recalling of these three witnesses was rightly rejected by
the learned Judge of the trial Court.
19. Insofar as Exh.-239 is concerned, by this application the
applicants prayed before the Court after recording of their
statements under Section 313 of the Cr.P.C. that the persons
whose names are mentioned in the application Exh.-239 be called
as their defence witness and the said application is rejected by the
learned Judge on 07.12.2017.
20. The learned counsel for the applicants invited my
attention to the order passed by the very same Judge below Exh.-
241 by which the Court below allowed the application to examine
one Golu Yadav as the defence witness. He submitted that there is
no rationale for allowing one application filed by the applicants
and rejecting another application for the very same purpose.
21. The persons whose names are mentioned in Exh.-239
and 241 were interrogated by the investigating officer during the
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course of investigation. Their statements under Section 161 of the
Cr.P.C. were also recorded. Their statements are part and parcel
of the final report.
The application Exh.-239 is rejected by the learned
Judge of the Court below only on the ground that on earlier
occasion these persons were not examined.
22. The examination of defence witness comes into picture
only after the prosecution completes its evidence and the
statements of the accused persons are recorded under Section 313
of the Cr.P.C. Prior to that, there is no stage of examining any
person as a defence witness.
23. Since the case was remanded back from the stage of
recording of statements under Section 313 of the Cr.P.C. and the
statements of accused persons including the applicants are
recorded by the learned Judge of the trial Court, the reasoning as
put forth by learned Judge of trial Court that on earlier occasion
these persons were not examined as defence witness, in my view,
is totally misconceived and cannot stand to scrutiny of law.
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24. Further, it is always open for the accused persons to
call those persons whose statements were recorded during trial
and though they were cited as witnesses by the prosecution but
ultimately the prosecution gave up those witnesses. If a person
was cited as prosecution witness and he was not examined as
such, it was always open for the defence to move an application to
examine that person as his defence witness and the application if it
is moved has to be considered by the Court below on its own
merit. However, in the present case, what is observed is that
merely because on earlier occasion when the opportunity was
there, they were not examined and therefore they are not entitled
to be called as defence witness, in my view, is totally erroneous
inasmuch as after recording of their statements under Section 313
of the Cr.P.C. when the incriminating evidence is brought to the
notice of the present applicants, according to the applicants their
defence may get probabilized after examining them as their
defence witnesses. This aspect is not at all considered by the
learned trial Court. Further, the very same Court allowed Exh.-
241 on earlier day and granted permission to the applicants to
examine Golu Yadav as defence witness.
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25. In view of the discussion in the preceding paragraphs, I
am of the view that the Court below has committed mistake in
rejecting the application Exh.-239.
The conspectus of the aforesaid discussion leads me to
pass the following order.
ORDER
(i) Criminal Application No.882/2017 is partly
allowed.
(ii) Order dated 05.12.2017 below Exh.-240 in
Sessions Trial No.198/2011 is hereby upheld.
(iii) Order dated 07.12.2017 passed below Exh.-
239 in Sessions Trial No.198/2011 is hereby quashed
and set aside.
(iv) The trial Court is directed to issue
summons to (i) Shobha w/o Santosh Santape and (ii)
Vandana w/o Sewak Meshram and the applicants are
permitted to examine these two witnesses as their
defence witnesses.
Rule is made absolute in the above terms.
JUDGE
kahale
