High Court

Legal Reasoning

125.Crl.APPLN.175.24 +.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.175 OF 2024IN CRIMINAL APPEAL NO.42 OF 2024Mahendrasing s/o Vikramsing Chauhan … APPLICANT VERSUS1.The Central Bureau of Investigation (C.B.I)Special Crime – 1, CBI Building, 5-BCGO Complex, Lodhi Road, New Delhi – 110 003Phone No.(011) 24368634through the Investigating Officer, Shri M.K. Pathak, Dy. S.P., CBI, SC-1, New Delhi2.The State of Maharashtrathrough, the Investigating Officer,Latur MIDC Police Station, Latur, Dist. Latur…RESPONDENTS...Advocate for applicant : Mr. Shirish Gupte, Senior advocate i/b. Mr.Abhaykumar OstwalStanding counsel for Respondent/CBI : Mr. Bhushan KulkarniA.P.P. for respondent/State : Mrs. Kalpalata Patil Bharaswadkar…WITHCRIMINAL APPLICATION NO.331 OF 2024IN CRIMINAL APPEAL NO.67 OF 2024Samir s/o Noormiya Killarikar… APPLICANT VERSUSThe State of Maharashtrathrough, the Officer Incharge1/10 125.Crl.APPLN.175.24 +.odtM.I.D.C. Police Station, Latur, Taluka and District Latur/Central Bureau of Investigation…RESPONDENTS...Advocate for applicant : Mr. R.S. Deshmukh, Senior advocate i/b. Mr. Vishal Chavan and Mr. Kunal Kale Standing counsel for Respondent/CBI : Mr. Bhushan KulkarniA.P.P. for respondent/State : Mrs. Kalpalata Patil Bharaswadkar… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 29.07.2024PRONOUNCED ON: 06.09.2024ORDER (MANGESH S. PATIL, J.) :These are the applications under Section 389 of the Code ofCriminal Procedure by the original accused Nos.1 and 2, respectively,who have been convicted for the offences punishable under Section 302read with Section 34, Sections 201 and 203 both read with Section 120–Bof the Indian Penal Code and have been sentenced to suffer lifeimprisonment and to pay a fine of Rs.5000/- each for the offencepunishable under Section 302, for a period of three years RI and fine ofRs.2000/- each for the offence punishable under Section 201 and RI oftwo years and fine of Rs.1000/- each for the offence punishable underSection 203 of the Indian Penal Code.2.We have heard the learned Senior advocates Mr. Gupte andMr. Deshmukh and learned advocate Mr Ostwal and also the learnedA.P.P. We have also heard the learned advocate Mr. Kale for the2/10 125.Crl.APPLN.175.24 +.odtinformant. Learned senior advocates would submit that admittedly, thereis no eye witness account of the incident. It was, therefore, imperativethat the prosecution should have proved the circumstances to complete achain of events ruling out even a slightest possibility of appellants’innocence. However, there are several missing links and no completechain can be established, even accepting all the circumstances beingtaken together. They would submit that the trial court has failed to noticethese missing links. Rather, it has resorted to inadmissible pieces ofevidence. The inferences have been based on surmises and conjectureswhich do not have any place in criminal law. These appellants havealready suffered long incarceration. Shortly appellant No.1 is to completefive years and the appellant No.2 would complete ten years. There is nolikelihood of the appeals coming for hearing. There are appeals againstacquittal as well, whereby, the decision of the trial court acquitting boththese appellants of the offences punishable under Section 364 read withSection 120–B/34 and Section 376–D read with Section 34 of the IndianPenal Code. Considering the voluminous evidence led by the prosecutionwhich has examined 125 witnesses it is unlikely that the appeals wouldbe heard finally in the forcible future and in the light of the trite legalposition evolved over a period of time, both the appellants are entitled tosuspension of sentence and release on bail. They would cite followingdecisions :i.Kashmira Singh Vs. State of Punjab; (1977) 4 SCC 2913/10 125.Crl.APPLN.175.24 +.odtii.Babu Singh Vs. State of U.P.; (1978) 1 SCC 579iii.Gudikanti Narasimhulu Vs. Public Prosecutor, High Court of A.P.;(1978) 1 SCC 240iv.Kiran Kumar Vs. State of M.P.; (2001) 9 SCC 211v.Akhtari Bi Vs. State of M.P.; (2001) 4 SCC 355vi.Saudan Singh Vs. State of U.P.; (2022) 2 CRIMES 21vii.Dinesh Kumar Sinha Vs. State of Jharkhand ; (2009) 6 SCC 628viii.Angana Vs. State of Rajasthan ; (2009) 3 SCC 767ix.Hussain Vs. Union of India ; (2017) 5 SCC 702x.M. Radha Hari Seshu Vs. State of Telangana; (2020) 8 SCC 1143.Additionally, the learned Senior advocates would submit thatthe appellant No.1 was on bail during trial. There are no allegationsabout he having misused the liberty muchless of having pressurized thewitnesses. There will not be any occasion for him to tamper the evidencenow. Both the appellants are ready to abide even stringent terms andconditions and may be released on bail by suspending the sentence.4.Mr. Gupte and Mr. Deshmukh would submit that theprosecution is essentially founding its case on the theory of ‘last seentogether’ even when no clinching evidence was available for the trialcourt. The witnesses who were alleged to have seen the deceased in thecompany of the appellants turned hostile. There was no clear and visibleCCTV footage to identify both of them in the company of the deceasedwhile passing through Kakramba Toll Naka. Even the witness who isalleged to have identified the deceased from photograph even while it isalleged that these appellants together with the deceased had barelyhalted near Ashirwad bar for some time.4/10 125.Crl.APPLN.175.24 +.odt5.The learned advocates would further submit that a got upwitness Vivekanand Pundalikrao Sarkale (PW-51) also turned hostile andstill, the trial court believed him and on the basis of which a fragile storywas built up regarding subsequent conduct of the appellants and the co-accused regarding concealing with the evidence and misleading theprosecution.6.The learned senior advocates would further emphasize thatwhile the trial court was convicting the appellants for the other offences,it chose not to rely upon the prosecution to the extent of offence ofabduction and rape, which offences also were based on the same set ofevidence, regarding last seen together and matching of the appellants’DNA profiles with the deep vaginal swab sample of the deceased. Suchinference was self-contradictory, convicting the appellants for the offenceof murder but simultaneously acquitting them of abduction and rape.7.Learned APP would strongly oppose both these applications.He would remind us of the inherent limitations on the powers of thisCourt under Section 389 of the Code of Criminal Procedure to suspendthe sentence and release on bail the convicts of a serious crime. He wouldsubmit that the exercise is not to find fault with the conclusions drawn bythe trial court at this juncture, muchless by undertaking a threadbarescrutiny of the evidence led before the trial court. It is a matter of murder.The appellants have been convicted and sentenced to life imprisonment.5/10 125.Crl.APPLN.175.24 +.odtThe conduct of appellant No.1 during the course of trial when he was onbail is not relevant once he is convicted. The parameters are different.Though they have suffered incarceration for a period as mentioned, thatwould have no bearing when both of them have been sentenced to sufferlife imprisonment. He would submit that the parameters laid down in thematter of Saudan Singh (supra) are not applicable to the fact situation ofthe matters in hand.8.The learned APP would further submit that the very conductof the defence of planting a dummy accused Sarkale (PW-51) coupledwith the attending circumstances revealing involvement of all the accusedin hatching a conspiracy to mislead the investigating machinery is a factwhich would substantiate the inference drawn by the trial courtregarding involvement of the appellants.9.He would submit that there is no dispute about the deceasedhaving died due to drowning at a lonely place. There is ample evidenceand circumstances to demonstrate that she was in the company of theappellants. The conduct of the appellants in taking a de tour to reachback to Latur instead of returning through the Kakramba Toll Naka beinga conduct relevant under Sections 8 and to introduce the relevant factsunder Section 9 of the Evidence Act, at this juncture, it cannot beinferred that the appellants have been convicted without any substanceand evidence.The learned AGP would place reliance on the following6/10 125.Crl.APPLN.175.24 +.odtdecisions : i.Omprakash Sahani Vs. Jai Shankar Chaudhary & Anr.;2023 LiveLaw (SC) 389ii.Preet Pal Singh Vs. The State of Uttar Pradesh & Anr.; (Criminal Appeal No.520/2020 arising out of SLP (Crl.) No.2102/2019)iii.Pappu @ Suresh Budharmal Kalani Vs. State of Maharashtra; 2015(4) Mh.L.J. (Cri.) 211.10.One need not devote any time to embark upon the aspect ofpowers of the appellate court under Section 389 of the Code of CriminalProcedure, particularly in the matter of convictions in serious crimes. Onealso need not delve into the parameters which are applicable at this stagefor considering the request for suspension of sentence and release on bailduring pendency of the appeals against conviction. It is trite that this isnot a stage to find out fault with every inference drawn by the trial court.It can happen only at a full-fledged hearing of the appeal againstconviction. Minor errors here and there in the process of appreciation ofevidence can seldom have any impact. It is only if the circumstances aresuch that there is a likelihood of the appellants being acquitted ultimatelythat alone should be the consideration for entertaining a request forsuspension of sentence and grant of bail. Having borne in mind theselimitations on the powers of this Court under Section 389 of the Code ofCriminal Procedure in the facts and circumstances of the case, we shallproceed to consider the requests objectively on their own merits.11.Admittedly, there are no eye witnesses to the allegedhomicidal drowning of the deceased and the prosecution has been heavily7/10 125.Crl.APPLN.175.24 +.odtrelying upon the attending circumstances based on the theory of ‘lastseen together’.12.The chain of events which seem to have been accepted bythe trial court demonstrates that indeed the deceased was in the companywith her friends in the early morning of 21.03.2014. After returninghome for a while, she again left home on her bike, parked it at EkmatBhavan office. She then waited at the PVR Chowk on Latur-Barshi road.Both these appellants allegedly arrived there in a white Ford Figo Carbearing No.KA-51-MA-3657. She boarded the car and three of them thenproceeded along Latur-Ausa-Tuljapur road. The CCTV footage ofKakramba Toll Naka revealed passing of the vehicle through it at around12.00 noon. The footage was collected from the DVR machine. On theway the three of them seem to have alighted near Ashirwad Bar. Thereare witnesses who had seen the two individuals near the Pachunda pondwhere the dead body was recovered. Though these witnesses DhulappaRamchandra Kolekar (PW-54) and Sanjay Baliram Patil (PW-99) turnedhostile and denied to have seen the two persons near Pachunda pond atthe material time, the evidence of one advocate Nilkanth PrabhakarWhatte (PW-55) stating that on the relevant day and time he received atelephonic call from these witnesses, Dhulappa Kolekar (PW-54) andSanjay Patil (PW-99) about having seen two persons making noise whilethey were returning from Tuljapur to Kakramba near Pachunda pond andthey having seen a white coloured Ford Figo Car bearing No.KA-51-MA-8/10 125.Crl.APPLN.175.24 +.odt3657. They also told him about a girl having fallen in the pond.13.Assuming that the passengers in the car cannot actually beseen with sufficient clarity in the CCTV footage while passing throughKakramba Toll Naka, the fact that the vehicle passed through it coupledwith evidence regarding the subsequent incident in this form, wherein,these witnesses Dhulappa Kolikar and Sanjay Patil who turned hostilewould be corroborated through their immediate reaction in making atelephone call to the advocate Whatte and even their information abouthaving seen the girl in the pond is indeed a clear set of evidence insupport of the theory of ‘last seen together’ which is subsequentlycorroborated by the test identification parades. It would also be relevantunder Sections 8 and 9 of the Evidence Act. 14.The subsequent conduct of the appellants returning Latur bytaking a de tour rather than straight way coming back through KakrambaToll Naka coupled with the subsequent attempt at screening the offendersby hatching a conspiracy and even to set up a dummy who was ready totake on the blame Sarkale (PW-51) in our considered view, demonstratesinvolvement of the appellants in commission of the crime.15.Coupled with the above state of affairs, even there arecertain other corroborating circumstances like discovery of the deceased’smobile handset from a well of village Warwanti pursuant to a discoverymade by appellant No.1 under Section 27 of the Evidence Act, tallying itwith the receipt issued by a mobile shop owner Mukesh Dineshchandra9/10 125.Crl.APPLN.175.24 +.odtBrijbasi (PW-47), corroboration of the telephonic conversation amongstall the accused of the relevant time, are the circumstances which wereenough for the trial court to convict the appellant.16.It cannot be said that in all probability, the appellants arelikely to be acquitted.17.Even if it is a matter of record that appellant Nos.1 and 2are behind the bars for almost five and ten years respectively, theparameters laid down in the matter of Saudan Singh (supra) are notapplicable to their cases when they have been convicted for murder andsentenced to life imprisonment.18.True it is that the appellants have been acquitted of theoffences of abduction and rape, however, we need not enter into thataspect while considering the request for suspension of sentence underSection 389 of the Code of Criminal Procedure.19.Both the criminal applications are rejected. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb10/10