Bombay High Court
Damodhar Jagnnath Lokhande And Another vs Central Bureau Of Investigation And ... on 23 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:26121-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.848 OF 2024
1) Damodhar Jagnnath Lokhande,
Age-52 years, Occu:Business,
R/o-Flat No.5, "Gangopi",
Ganesh Colony, Jalgaon,
Taluka and District-Jalgaon,
2) Liladhar Purushottam Narkhede,
Age-60 years, Occu:Nil,
R/o-Bhavani Peth,
Taluka and District-Jalgaon.
...PETITIONERS
VERSUS
1) Central Bureau of Investigation,
Through its Inspector,
Special Crime Branch, Mumbai,
2) The State of Maharashtra,
Through Zilla Peth Police Station,
Jalgaon,
3) Rajani Vishram Patil,
Age-69 years, Occu:Household,
R/o-Vidhyanagar, Jalgaon,
Taluka and District-Jalgaon.
...RESPONDENTS
...
Mr. G.V. Wani Advocate for Petitioners.
Mr. A.J. Patil Advocate for Respondent No.1.
Ms. R.P. Gour, A.P.P. for Respondent No.2.
Mr. S.J. Salunke, Advocate for Respondent No.3.
...
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CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE OF RESERVING JUDGMENT : 8th OCTOBER 2024
DATE OF PRONOUNCING JUDGMENT : 23rd OCTOBER 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel appearing for the respective parties finally, by consent.
2. Present Writ Petition is filed under Article 226 of the
Constitution of India as well as under Section 482 of the Code of
Criminal Procedure for quashing and setting aside charge-sheet
i.e. the proceedings in Sessions Trial No.8 of 2006 pending
before the learned Sessions Judge, Jalgaon.
3. The case has a chequered history and therefore, we would
like to consider the history first. The offence came to be
registered vide Crime No. 242 of 2005 with Zilla Peth Police
Station, Jalgaon against two unknown persons on the basis of
First Information Report (for short "the FIR") given by one
Mahendra P. Mahajan, under Section 302 of the Indian Penal
Code. It was stated that one Mr. V.G. Patil was killed by those
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two unknown persons. During the investigation two persons
were arrested - (1) Raju Mali and (2) Raju Sonawane, on 25 th
September 2005. Thereafter the matter was investigated by
State C.I.D., and even the petitioners came to be arrested in
that matter and later on they were released on bail. The
petitioners had preferred two different applications for quashing
the proceedings initiated against them bearing Criminal
Application Nos. 3331 of 2005 and 298 of 2006, respectively.
During the pendency of those applications charge-sheet was
filed. Those applications came to be allowed after hearing the
parties concerned and the FIR as well as charge-sheet was
quashed by this Court on 3rd February 2006 in respect of both
the petitioners. The order passed by this Court was then
challenged before the Hon'ble Supreme Court by the State by
filing Criminal Special Leave Petition No.2918 of 2006. However,
that Special Leave Petition came to be dismissed. It appears that
the widow of the deceased V.G. Patil i.e. Smt. Rajni Patil had
filed Criminal Writ Petition No.646 of 2005 before this Court for
request of transfer of the further investigation from State C.I.D.
to Central Bureau of Investigation (C.B.I.). That petition came
to be allowed. Then the widow of the deceased filed Criminal
Writ Petition No.1278 of 2007 before the Principal Bench at
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Mumbai for monitoring the further investigation handed over to
C.B.I. During the pendency of said writ petition; second
supplementary charge-sheet was filed against Raju Mali and Raju
Sonawane in pending Sessions Case No.8 of 2006 by C.B.I., on
10th June 2008. Third supplementary charge-sheet came to be
filed on 6th October 2008 wherein the present petitioners were
added as accused. That supplementary charge-sheet was
committed to the Court of Sessions. The petitioners had also
filed intervention application in Criminal Writ Petition No.1278 of
2007. The said writ petition came to be disposed of by this Court
on 18th July 2009. The petitioners had then moved an application
for quashing supplementary charge-sheet against them by filing
Criminal Application No.3679 of 2008 and also for stay to the
Sessions trial against them. After hearing both the sides, the
said application came to be dismissed on 15 th October 2009.
However, when prayer was made that the petitioners want to
challenge the said order before the Hon'ble Apex Court, the
earlier protection i.e. stay to the proceedings before the learned
Sessions Judge was extended till 16th November 2009. Taking
note of the stay, an order came to be passed by the learned
Additional Sessions Judge, Jalgaon, who was dealing with the
Sessions Case No.8 of 2006, regarding separation of trial in view
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of the fact that accused Raju Sonawane was under-trial prisoner
since 2005. Prior to passing the said order of separation of the
trial, the other accused, namely, Raju Mali had expired on 6 th
April 2007. Therefore, the trial proceeded only against accused
No.2 Raju Sonawane for the offence punishable under Section
302 and 120-B of the Indian Penal Code. The charge was framed
on 15th October 2009. In the meantime the petitioners had also
filed an application before the learned Sessions Judge, Jalgaon
on 19th December 2009 for discharge under Section 227 of the
Code of Criminal Procedure. However, that application came to
be rejected on 11th March 2010. The said order was challenged
before this Court in Criminal Writ Petition, however, that was got
withdrawn by the petitioners. The story does not end here. It
appears that the widow of the deceased had moved an
application to the Sessions Court for adding two more persons,
namely, Gajendrasing Patil and Dr. Ulhas Patil to be arrayed as
accused Nos.5 and 6. When that application came to be allowed,
those two added persons have preferred Criminal Revision
Application Nos.165 of 2014 and 3749 of 2014. This Court had
then stayed the sessions trial against those persons. It appears
that the Criminal Revision Applications are still pending, which
were preferred by those added accused persons. The trial Court
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proceeded only against original accused No.2 - Raju Sonawane
and convicted him for the offence punishable under Section 302
and 120-B of the Indian Penal Code. He has been sentenced to
suffer imprisonment for life. Said Raju Sonawane preferred
appeal before this Court bearing Criminal Appeal No.75 of 2015.
This Court (CORAM: SMT. VIBHA KANKANWADI AND ABHAY S.
WAGHWASE, JJ.) has set aside the said conviction by Judgment
and order dated 17th February 2023. Respondent No.1 herein
had preferred Special Leave Petition before the Hon'ble Supreme
Court, however, that stood dismissed by order dated 27 th
September 2023.
4. With the above chequered history, we have heard learned
Advocate Mr. G.V. Wani for the petitioners, learned Advocate Mr.
Patil for respondent No.1, learned APP Ms. Gour for respondent
No.2 and learned Advocate Mr. Salunke for respondent No.3.
5. Learned Advocate for the petitioners submits that now the
findings which have been given by this Court while deciding
Criminal Appeal No.75 of 2015 are binding on all the parties.
This Court has re-assessed the evidence and has come to the
conclusion that the prosecution has failed to prove that said
accused i.e. appellant therein, Raju Sonawane had committed
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murder of deceased V.G. Patil. It has also been held that the
prosecution has failed to prove that accused Raju Sonawane had
entered into any conspiracy with anybody. Under these
circumstances, it would be futile exercise to ask the present
petitioners to face the trial. The prosecution story is that the
present petitioners had telephonically communicated to the
deceased accused and the accused who has been acquitted by
this Court, to commit murder of deceased V.G. Patil. In other
words this Court has held that there is absolutely no evidence of
contract killing and that the contract was given by the petitioners
and therefore, the Writ Petition deserves to be allowed.
6. Per contra, learned Advocate Mr. A.J. Patil for respondent
No.1, learned APP Ms Rashmi Gour for State and learned
Advocate Mr. S.J. Salunke for respondent No.3 have strongly
opposed the Writ Petition and submitted that plight of the widow
of the deceased is required to be considered first. She was
required to knock the doors of this Court each time. The
acquittal of said Raju Sonawane cannot have bearing over the
case against the present petitioners. The case against the
petitioners can still be proved. This Court while rejecting the
proceedings filed by the petitioners has observed that there is
prima facie evidence against the present petitioners.
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7. We have noted the chequered history. The first and
foremost Judgment that is required to be taken note of, is the
Judgment in Criminal Application No.3331 of 2005 with Criminal
Application No.298 of 2006 decided by this Court on 3 rd February
2006. The said proceedings were filed by the present petitioners
for quashing the FIR as well as subsequent proceedings i.e.
charge-sheet. This order was challenged by the State in Special
Leave Petition No.2918 of 2006, but that was dismissed. That
means even the FIR against the present petitioners or the said
FIR, though the petitioner's name was not there in the FIR, still
it was quashed and set aside as against the petitioners.
Therefore, the question would be, whether there could have
been subsequent investigation against the petitioners. We cannot
sit over the order passed by this Court by Co-ordinate Bench or
even learned Single Judge, when it was passed way back on 3 rd
February 2006. The fact then further reveals that this Court by
order dated 15th October 2009 though rejected Criminal
Application No.3679 of 2008, when prayer was made that the
petitioners want to challenge the said order before the Hon'ble
Apex Court, the earlier protection i.e. stay to the proceedings
before the learned Sessions Judge was extended til 16 th
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November 2009. However, on 12th March 2009 itself the trial
Court had separated the trial of accused Raju Sonawane from
the trial involving the petitioners.
8. At this stage, we are also taking note of the contents of
the FIR which states that the deceased V. G. Patil, apart from
being a lecturer in a college, was also active in politics. On 21 st
September 2005, in the early morning, he was proceeding in his
Maruti Car bearing No. MH-19-R-05 to deliver lecture. Around
7.30 a.m. while he was proceeding towards Jalgaon-Dhule
National Highway, according to the prosecution, his vehicle was
intercepted by a motorcycle. Both, rider and pillion rider who
were wearing helmet, pulled deceased out of the car and he was
stabbed by means of knife i.e. after one of them holding him and
the other one stabbing him. Informant Mahendra Mahajan, who
was a passerby, rushed to the spot. However both accused
persons fled after threatening him. People gathered at the spot.
After hearing name of deceased from someone amongst the
crowd, informant Mahendra rushed to the house of deceased and
informed his wife, who too rushed to the spot and shifted
deceased husband to hospital, where on examination he was
declared as dead. Informant Mahendra set law into motion by
lodging FIR.
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9. Initially, the investigation was carried out by local crime
branch, then it was transferred to C.I.D. and under the orders of
this Court, investigation was then transferred to C.B.I. Charge-
sheets were filed against four persons, as aforesaid, including
the petitioners in the present Petition. It was under Section 302,
120-B of the Indian Penal Code and Section 3 punishable under
Section 25 of the Arms Act. In the charge-sheet itself it was
stated that accused Nos.3 and 4 i.e. present petitioners had
political rivalry with the deceased and they had hatched
conspiracy with accused Nos.1 and 2 and hired them to commit
murder of deceased V.G. Patil. With this scenario, still the
learned Additional Sessions Judge, Jalgaon, by said order dated
12th March 2009 separated the trial of the accused Raju
Sonawane and it appears that, at that time the concerned Court
had taken note of death of another accused Raju Mali in 2007. It
appears that the trial was conducted and ultimately came to be
decided on 15th November 2014. The trial Court appears to have
not taken efforts till the pronouncement of Judgment, to see as
to whether as against the petitioners the proceedings are stayed
or not. The stay that was granted by this Court was in respect of
added parties i.e. accused Nos.5 and 6. Efforts ought to have
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been made to try the petitioners also along with said accused
Raju Chintaman Sonawane. Then it is to be noted that though
the case was committed to the Court of Sessions on 4 th January
2010, the trial was over and resulted in conviction of said Raju
Sonawane on 15th November 2014. He was held guilty for the
offence under Sections 302, 120-B of the Indian Penal Code. In
the Judgment and order dated 15 th November 2014, the learned
trial Judge says that the trial of the offence shall proceed against
the present petitioners and they should remain present before
the Court on 8th December 2014.
10. Raju Sonawane preferred Criminal Appeal No.75 of 2015
before this Court and this Court allowed the said Appeal vide
Judgment and order dated 17th February 2023, to which one of
the Member of this Division Bench ( SMT. VIBHA KANKANWADI, J.)
was party. Admittedly, the prosecution story as against the
present petitioners is not that they had actually committed
murder of deceased V.G. Patil. At the cost of repetition we would
say that as per the prosecution story, actual murder was
committed by accused Raju Mali and Raju Sonawane and the
conspiracy was stated to be between them and the present
petitioners and it is alleged that the present petitioners had hired
those two assailants. This Court while deciding Criminal Appeal
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No.75 of 2015, had reassessed the entire evidence. This Court
has disbelieved the informant PW-1 Mahendra Mahajan who
claims to be an eye witness, PW-16 Rambhau Gobru Pawar, the
second eye witness and PW-19 Jaywant Patil, the third eye
witness. The observations in respect of the assessment of the
evidence of these witnesses is certainly supporting the present
petitioners. Definitely, they can make use of the observations of
this Court regarding the assessment of the evidence of those
witnesses. Therefore, this Court had come to the conclusion that
the prosecution has not even proved that the murder was
committed by Raju Mali and Raju Sonawane. This Court has also
dealt with the conspiracy aspect alleged to have been hatched up
amongst all four accused persons to carry out the murderous
assault. In the Judgment dated 17 th February 2023 passed in
Criminal Appeal No.75 of 2015, this Court has made following
observations:-
"35. By plethora of judgments, time and again the Hon'ble
Apex Court has dealt with the essentials and ingredients for
attracting the said charge. To establish criminal conspiracy,
prosecution must adduce evidence to prove that:
i. Accused agreed to do or cause to be done an act ;
ii. Such an act was illegal or was done by illegal means
within the meaning of penal code.
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iii. Irrespective of whether some overt act was done
by one of the accused in pursuance of the agreement.
36. Thus, in criminal conspiracy meeting of minds of two or
more persons for doing illegal act is a sine qua non. To convict
a person for conspiracy it is incumbent upon prosecution to
show that accused persons together agreed to accomplish the
unlawful object of conspiracy.
37. The above position is a residue of plethora of landmark
judgments like Yash Pal Mittal v. State of Punjab ; (1977) 4
Supreme Court Cases 540, Kehar Singh and others v. State
(Delhi Administration) ; (1988) 3 Supreme Court Cases 609,
Firozuddin Basheeruddin and others v. State of Kerala ;
(2001) 7 SCC 596, Yakub Abdul Razak Memon v. State of
Maharashtra ; (2013) 13 Supreme Court Cases 1 and Mukesh
and another v. State (NCT of Delhi) and others ; (2017) 6
Supreme Court Cases 1.
38. Bearing above legal requirements in mind, if the
evidence in the case in hand is carefully gone into, it is seen
that except gathering CDR, there is no credible and reliable
evidence or even any circumstance to draw inference about
accused persons hatching a conspiracy to commit the
murder. There is no evidence to suggest that there was any
meeting between them by any mode or say, meeting of their
minds. When it was a specific case of prosecution regarding
contract killing, it was expected of prosecution to
demonstrate who had hired whom. There ought to have been
evidence suggesting payment of blood money. But there is
no evidence in that regard. Mere telephonic conversations
are not sufficient to draw conclusion regarding plotting
conspiracy. Resultantly, if evidence regarding contract killing
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is not on record, even the very motive for present appellant
to commit murder vanishes in thin air. Consequently, in our
opinion, when the essential requirements for attracting said
charge being patently missing, it cannot be said that said
charge is brought home."
11. Now, the position as it stands is that the Judgment and
order passed in Criminal Appeal No.75 of 2015 dated 17 th
February 2023 by this Court, has been upheld by the Hon'ble
Supreme Court in Special Leave Petition (Criminal) Diary No(s).
36761/2023, when C.B.I. has preferred that Petition. By order
dated 27th September 2023, it has been held by the Hon'ble
Supreme Court that:-
" Delay condoned.
We see no reason to entertain the Special Leave Petition.
Accordingly, the Special Leave Petition stands dismissed.
Pending application(s), if any, shall stand closed."
12. Thus, the above observations by this Court in Criminal
Appeal No.75 of 2015 have attained finality and therefore, it
would be unjust to ask the present petitioners to face the trial.
13. Learned Advocate for respondent Nos.1 and 3 have tried to
submit that still the prosecution has an opportunity to prove the
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case / charge against the petitioners. We do not agree with the
same. There is no investigation after the decision of this Court
on 17th February 2023 in Criminal Appeal No.75 of 2015, either
on the point of actual murderous assault or on the point of
alleged criminal conspiracy. Therefore, question of leading fresh
evidence by the prosecution does not arise. The same witnesses
cannot be called by the prosecution to say the same thing. If a
trial takes place in absence of an accused, then such accused,
after bringing back before the Court, has right to cross-examine
the witnesses who have been examined in his absence. But the
prosecution does not get any chance. Further in this particular
case also, when said Raju Sonawane was facing the charge even
for Section 120-B of the Indian Penal Code, the prosecution was
expected to produce and adduce the entire evidence on that
point and would not have withheld the same for any reason
when that alleged conspiracy was between those persons with
these petitioners and the charge has been said to have not been
proved against one party to the conspiracy, then for other party
the prosecution cannot get a fresh chance. Therefore, it would
be unjust and it would be futile exercise to ask the present
petitioners to face the trial. The case squarely falls within the
parameters laid down in State of Haryana vs. Ch. Bhajan Lal and
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others, AIR 1992 SC 604, and therefore, this is a fit case where
we should exercise our constitutional powers. Hence the
following order:-
ORDER
(I) The Writ Petition stands allowed.
(II) The proceedings of Sessions Trial No.8 of
2006 pending before the learned Sessions Court,
Jalgaon, stands quashed and aside as against
petitioner No.1 - Damodhar Jagnnath Lokhande
and petitioner No.2 - Liladhar Purushottam
Narkhede.
(III) Rule is made absolute in above terms.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/OCT24
