Bombay High Court
Anil Janardhan Gavade vs The State Of Maharashtra And Another on 3 January, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:74-DB
Cri.Appln. No.2344/2021
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2344 OF 2021
Anil s/o Janardhan Gavade
Age 37 years, Occ. Business & Agri.
R/o Near Hanuman Mandir,
Malharwadi, Rahuri, Ta. Rahuri
District Ahmednagar. ... APPLICANT
(Orig. Accused No.5)
VERSUS
1. The State of Maharashtra
Through its Investigating Officer,
Rahuri Police Station,
Tq. Rahuri, Dist. Ahmednagar.
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad)
2. Savita w/o Rohidas Datir,
Age 39 years, occ. Machine Work,
R/o Malharwadi Road, Undewasti,
Rahuri, Tq. Rahuri, Dist. Ahmednagar
Mob. No. 8208494866 ... RESPONDENTS
.......
Mr. N.B. Narwade, Advocate for applicant
Mr. V.K. Kotecha, A.P.P. for respondent No.1.
Mr. N.R. Shaikh, Advocate for respondent No.2 (appointed)
.......
CORAM : R.G. AVACHAT AND
SANJAY A. DESHMUKH, JJ.
Date of reserving judgment : 22nd December, 2023
Date of pronouncing judgment : 3rd January, 2024
JUDGMENT (PER R.G. AVACHAT, J.) :
By this application, under Section 482 of the Code of
Criminal Procedure, quashment of Sessions Case No.128/2021,
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pending before the Sessions Court, Ahmednagar which is
registered pursuant to F.I.R. bearing Crime No.0286/2021,
registered with Rahuri Police Station, District Ahmednagar for the
offences punishable under Sections 302, 201, 120-B, 212, 363,
364, 341 is sought.
FACTS :-
2. The First Information Report (F.I.R.) has been lodged
by widow of the deceased Rohidas on 6/4/2021 by 3.00 p.m. It has
been averred in the F.I.R. that, her husband Rohidas (deceased)
was a Press Reporter by profession. The informant along with her
husband and family members would reside at village Malharwadi,
Unde Vasti, Rahuri. Deceased Rohidas left the house for Rahuri by
8.00 in the morning on 6/4/2021 on his Scooty (MH-12/JH-4063).
Sambhaji Varale, friend of deceased Rohidas made a call on cell
phone of the informant. He told her that, unknown person abducted
Rohidas in a white Scorpio from the place nearby Keshav Mangal
Karyalaya. She, therefore, rushed there to find the Scooty at that
place. The Chappals of the deceased were also lying there. She,
therefore, immediately made a call on the cell phone of her
husband (deceased). It was found to have been switched off. The
informant, therefore, approached the Police Station and reported
the incident. Initially, crime for the offences punishable under
Sections 341 and 363 of the Indian Penal Code came to be
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registered.
3. The informant on the same day gave a supplementary
statement. It has been stated therein that, there was a dispute over
18 acres of land situated at Rahuri. The dispute was between one
Kanhu More (accused No.1) and the original owner of the said land.
The deceased Rohidas was supporting the land owner. He had
published the matter in a newspaper. It is also her case that, the
main accused Kanhu More tried to dodge the Scooty with his
Scorpio vehicle. It has further been stated that, one Karbhari
Mangurde and his two sons had made encroachment on public
land. The deceased had, therefore, made a complaint to the
Municipal Council, Rahuri. In short, the informant suspected
involvement of these persons in abduction of her husband.
4. During the course of investigation, dead body of
Rohidas was found. Injuries were noticed on his person. Section
302 of the Indian Penal Code, therefore, came to be invoked.
Balasaheb Mangurde and his two brothers were found to have not
been involved in the crime. Charge sheet came to be filed against
Kanhu More and 5 others including the present applicant.
5. Close reading of the charge sheet and the police
papers would indicate that it is the case of the prosecution that
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Kanhu More and accused Nos.2 to 4 namely Taufik Shaikh Arjun
Mali and Akshay Kulthe abducted the deceased and committed his
murder. The present applicant is alleged to have been in
conspiracy with all of them to eliminate the deceased. He is also
alleged to have harboured those 4 assailants. Section 212 of the
Indian Penal Code has, therefore, been invoked against the
applicant.
6. Heard. Learned counsel for the applicant would submit
that, it is a case of no material to proceed against the applicant for
any of the offences. According to him, although the applicant drove
the deceased to a particular place post the crime, there is nothing
to indicate him to have knowledge of the main culprits who have
committed the offence in question. He would further submit that, so
far as regards the offence of criminal conspiracy is concerned,
there is no shred of material. The trial Court has framed the charge
for the offence under Section 302 read with 120-B of the Indian
Penal Code against the applicant. He, therefore, urged for
quashing of the entire proceedings.
7. The learned counsel appointed to represent the
respondent No.2- informant and the learned A.P.P. would, on the
other hand, submit that, there could hardly be direct evidence of the
offence of conspiracy. Involvement of a culprit in such offence
could only be ascertained from surrounding circumstances, conduct
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of the accused and knowledge. Three circumstances have been
adverted to, namely, statement of widow of the deceased, crime
scene panchanama and the statement of brother of the applicant.
Reliance on the judgment of the Apex Court in case of Rajiv Kumar
Vs. State of U.P. & anr. [ AIR 2017 SC 3772 ] has been placed to
ultimately urge for rejection of the application.
8. Considered the submissions advanced. Perused the
relevant police papers. As per the case of the prosecution itself the
murder was committed by Kanhu More (accused No.1) and his
three associates - accused Nos.2 to 4. The applicant is not alleged
to have been directly involved in the crime in question. The F.I.R.
was lodged against unknown person. The informant, in her
supplementary statement, suspected involvement of co-accused
Kanhu More and others. The question is, whether there is material
to proceed against the applicant for the offences punishable under
Sections 302 and 212 read with 120-B of the Indian Penal Code
and related offences.
9. Section 120-B of the Code of Criminal Procedure reads
thus :
"120-B. Punishment of criminal conspiracy :--
(1) Whoever is a party to a criminal conspiracy
to commit an offence punishable with death,
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imprisonment for life or rigorous imprisonment for
a term of two years or upwards, shall, where no
express provision is made in this Code for the
punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy
other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished
with imprisonment of either description for a term
not exceeding six months or with fine or with
both.."
10. In case of Rajiv Kumar (supra), it has been observed : -
"44. The essential ingredients of the offence of
criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the agreement must
relate to doing or causing to be done either (a) an
illegal act; or (b) an act which is not illegal in
itself but is done by illegal means. It is, therefore,
plain 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. It is extremely difficult to
adduce direct evidence to prove conspiracy.
Existence of conspiracy and its objective can be
inferred from the surrounding circumstances and
the conduct of the accused. In some cases,
indulgence in the illegal act or legal act by illegal
means may be inferred from the knowledge itself."
11. Involvement of an accused in the crime can be made
out by pointing out him to be an accessory before commission of
the crime, at the time of commission of crime or post commission of
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the crime. The record indicates the present applicant to have
friendly relations with the co-accused Kanhu More. That is,
however, not sufficient to rope him in the offence of conspiracy to
commit murder. Our attention has been adverted to a statement of
the widow of the deceased, recorded about a month after the
alleged incident. It has been stated therein that, once her husband
(deceased) had informed her that the present applicant was an
associate of main accused Kanhu More. The applicant would keep
watch on the movements of the deceased. The statement is
conspicuously silent to state as to when the deceased had shared
this information with her. This alleged statement would not be
covered by Section 32(1) of the Evidence Act. There is nothing to
indicate as to why she did not disclose the same in the F.I.R. or in
her first supplementary statement. There is no material to indicate
the present applicant to have had kept watch on the movements of
the deceased on the day of the incident or within a period in
proximity next before the crime in question. The facts in the case of
Rajiv Kumar (supra) were altogether different. The involvement of
the co-accused Smt. Neela Yadav was writ large therein. She was,
therefore, convicted for the offence of conspiracy. Factual matrix of
that case are found in paragraph No.47 of the judgment which are
reproduced hereinbelow :-
"47. So far as the role of co-accused appellant
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Neera Yadav is concerned, at the relevant time
both the appellants were public servants. Neera
Yadav played a specific role facilitating the
appellant Rajiv Kumar to obtain plot No.27 in
Sector-14A at less premium. Being CCEO of
NOIDA, appellant Neera Yadav signed various
notes put up before her like Ex. Ka-34
(15.10.1994), conversion of "guest house" to
"residential" and allotment of plot No.27 in
Sector-14A. On perusal of the exhibits, it is clear
that appellant Neera Yadav was involved in all the
stages of conversion of the "guest house" to
"residential", in violation of rules allotment of plot
No.27 to appellant and also allotment of additional
area to the appellant Rajiv Kumar. Often
conspiracy is hatched in secrecy and for proving
this offence substantial direct evidence may not be
possible to be obtained. The evidence and
materials on record amply show that there was a
prior concert of minds of the appellants in
conversion of the "guest house" into "residential"
and allotting the same to appellant by flouting the
rules and the circular."
12. Then what is relied on are the statements of brother of
the applicant and one Ravindra Kale and Abasaheb Patil. The
statement of Ajay Gavade (brother of the applicant) would indicate
that, on the day of the incident, the applicant was at home. Ajay
had come from Pune for death anniversary of their grandmother.
The applicant left the house by 6.00 in the evening. He did not
come home on that day. The applicant informed his brother that
Kanhu More has committed murder of the deceased Rohidas. The
other two statements namely of Ravindra Kale and Abasaheb Patil
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would indicate that Kanhu More along with his 3 associates had first
been to the resident of Ravindra Kale. Kanhu More parked his
white Scorpio behind the house of Ravindra Kale. He made a
phone call to the present applicant and asked him to collect a sum
of Rs.1,50,000/- from his residence. The applicant obliged and
came to a particular place i.e. near Hotel Sai Shraddha. From that
place, he drove Kanhu More to the house of Abasaheb Patil. There
the applicant asked for liquor. Since no liquor was available, the
applicant left that place.
13. There is strong material to indicate the applicant to
have been close associate of the main accused Kanhu More. At
Kanhu More's instance he collects money from his residence. Then
drove him in a blue car to Hotel Sai Shraddha. From that place he
drove the main accused Kanhu More to the place of witness
Abasaheb Patil. In spite of there being death anniversary of his
grandmother, he did not return home. His cell phone was found
switched off. These facts indicate the applicant to have been
involved in assisting the main accused Kanhu More and his
associates post commission of the crime. The applicant can be
said to have committed offence of harbouring offender. So far as
circumstance relating to scene of offence panchanama wherein the
applicant is stated to have distributed sum of Rs.1,50,000/- among
the co-accused is concerned, the same is also conduct post
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commission of the crime.
14. It is reiterated, there is nothing to indicate the present
applicant to have been accessory before or at the time of
commission of the crime. He, therefore, cannot be charged with an
offence of conspiracy to commit murder. So was the conclusion of
the investigating officer recorded on page 82 of the Charge Sheet.
For better appreciation, the relevant matter in that regard is
reproduced below :
",danjhr lnj xqUg;kps >kys riklkr dkWye uacj 10
e/khy vkjksih ukes 1½ dkUgq xaxkjke eksjs] o; 46 o"ksZ 2½
rksQhd eqDrkj 'ks[k] o; 21 o"ksZ 3½ vtqZu mQZ ykY;k
fodze ekGh] o; 25 o"ksZ 4½ v{k; lqjs'k dqyFks] o;
20 o"ksZ] gs xqUgk ?kM.;kps vkB fnol vxksnj jkgqjh
'kgjkrhy xV uacj 427 e/khy vBjk ,dj 'ksrkr
>kysY;k IykWVhax uacj 3 e/khy Msªust ykbZups >kd.kktoG
clqu ,d= ;soqu] ;krhy e;r jksfgnkl jk/kqth nkrhj o;
49 o"ksZ jk- maMs oLrh eYgkjokMh jksM
jkgqjh] ;kps'kh ;krhy eq[; vkjksih dkUgq xaxkjke eksjs ;kps
lkscr x.ksxko ;sFkhy xV uacj 203 losZ uacj 46 ps
'ksr tehuhrhy MkW- LoIuhy ek/kojko ekus ;kaps'kh ek-
U;k;ky;kr okn lq# vlqu] ;kckcr ;krhy e;r jksfgnkl
jk/kqth nkrhj gk MkW- ekus ;kaps orhus ek- U;k;ky;kps
dkedkt ikgr gksrk o osGksosGh R;kps n{k >qatkj
i=dkj ;k orZeku i=ke/;s ckreh Vkdqu cnukeh dj.;kph
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fnolkr R;kps vigj.k d#u] R;kyk ftos Bkj ek#u]
R;kps izsrkps foYgsokV yko.ksckcr QkStnkjh ik= xqUg;kpk
dV jpyk gksrk- ;ko#u lnj xqUg;krhy vkjksih uacj 1 rs
4 Hkknfo dye 120 ¼c½ izek.ks xqUgk dsY;kps rksger
vls-
;krhy vkjksih dzekad 2½ rksQhd eqDrkj 'ks[k ;kus ;krhy
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e;r jksfgnkl jk/kqth nkrhj ;kpsoj fn- 06-04-2021
jksth ikGr Bsoqu] R;kps ckcr vkjskih uacj 1½ dkUgq
xaxkjke eksjs 3½ vtqZu mQZ ykY;k fodze ekGh 4½
v{k; lqjs'k dqyFks] ;kaps laidkZr jkgqu vkjksih dzekad
1 ;kph LdkWihZvks xkMh dzekad ,e,p 17] ,>sM 5995
fgpk okij d#u] ;krhy e;rkl ftos Bkj ekj.;kps
mnns'kkus R;kpk jLrk vkMoqu] R;kl vkjksih dzekad 1 ;kps
ojhy xkMh e/;s cGtcjhus ?kkyqu iGoqu usY;kps vkjksih
dzekad 1 rs 4 ;kauh Hkknfo dye 363] 364] 341
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ekjgk.k d#u ftos Bkj ek#u [kqu d#u] R;kpk e`rnsg
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izsr jksVjh Dyc CyM cWads toG Qsdqu nsoqu] iGqu tkrkauk
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Eg.kqu ;krhy vkjksih uacj 5 ;kus Hkknfo dye 212
izek.ks xqUgk dsY;kps rksger vls-"
15. For all the aforesaid reasons, in our view, the
application partly succeeds. The proceedings in Sessions Case
No.128/2021, pending before the learned Sessions Court,
Ahmednagar, for the offence punishable under Section 302 read
with 120-B of the Indian Penal Code stands quashed so far as
regards the present applicant is concerned. Needless to mention,
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the applicant shall be proceeded against for the offence punishable
under Section 212 of the Indian Penal Code and the related
offences, if any.
The Criminal Application stands disposed of.
16. Fees of Mr. N.R. Shaikh, learned appointed counsel for
respondent No.2 is quantified at Rs.15,000/- (Rupees fifteen
thousand).
(SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.)
fmp/-
