Household., R/o. Shastrinagar, Shevgaon, Tq. Shevgaon, Dist. Ahmednagar v. The State of Maharashtra Through : In-charge Police Inspector, Shevgaon Police Station, Tq. Shevgaon
Case Details
1 REVN 88-2021.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 88 OF 2021 Shantabai W/o Ramchandra @ Ramaji Satpute Age : 55 years, Occu. : Household., R/o. Shastrinagar, Shevgaon, Tq. Shevgaon, Dist. Ahmednagar .. Applicant Versus The State of Maharashtra Through : In-charge Police Inspector, Shevgaon Police Station, Tq. Shevgaon, Dist. Ahmednagar .. Respondent Mr. V. D. Sapkal, Senior Advocate i/by Mr. S. R. Sapkal, Advocate for the Applicant. Mrs. P. V. Diggikar, APP for Respondent. CORAM : KISHORE C. SANT, J. DATED : 10th OCTOBER, 2022. ORAL JUDGMENT :- 1. Heard the learned advocate for the applicant and learned APP for the Respondent/State. Taken up for final hearing with consent of the parties. 2. By way of filing this revision application, the original accused has challenged an order passed by the learned Additional Sessions Judge, Ahmednagar of framing of charge against the accused in Sessions case No. 17/2021 dated 25.03.2021. The charge framed reads as below : 1 of 29 2 REVN 88-2021.odt “Firstly, that on 08.09.2013 at midnight 01.30 a.m., at the house of deceased Ramchandra Satpute, at Shastrinagar, Shevgaon, Tal. Shevgaon, Dist. Ahmednagar, you accused committed a murder of Ramchandra Satpute (i.e., your husband), by firing bullets on him from the pistol of the deceased, intentionally or knowingly that, your said act would caused death of your husband (Ramchandra Satpute), and thereby you have committed an offence punishable under Section 302 of Indian Penal Code and within my cognizance. Secondly, that on the aforesaid date, time and place, you accused, knowing or having reason to believe that you caused offence of murder punishable with death or life imprisonment has been committed, did cause certain evidence of the said offence i.e., cartridge in the pistol of the deceased used for the commission of the offence of murder to disappear, destroy or suppress, with intention of screening yourself from legal punishment and thereby you have committed an offence punishable under Section 201 of Indian Penal Code and within my cognizance.” 3. The facts of the case as appear from the record are that the present applicant is wife of the deceased Ramaji Sahebrao Satpute. The deceased died due to bullet injuries in the midnight of 08.09.2013 while the house. Initially, accidental death was registered. The statements of the relatives including the statement of the present applicant, sons, brother of the deceased and even driver of the deceased came to be recorded. No one expressed any doubt about the accidental death. Sons of the applicant were very much in the house 2 of 29 3 REVN 88-2021.odt when the incident took place. 4. Practically the entire investigation was over. The ballistic experts report dated 31.08.2016 was only to be received which was received in October 2016. Opinion in the report corroborates with the statement of the applicant which was recorded immediately after the incident. However, the Police Inspector namely Suresh Sapkale who took the charge of Shevgaon Police Station on 17.11.2017 lodged a report on
Facts
30.12.2017. The FIR came to be lodged in respect of the incident dated 08.09.2013 after more than four years. Thus, on all this he lodged the report for the offences punishable under Sections 302 and 201 of the I.P.C. against the present applicant. It is clear that, the FIR is lodged by the P. I. when he received an opinion from the Chemical Analyser (ballistic expert) in which there is opinion that the bullets must have been fired from the distance of 2.5 ft. There is another circumstance giving suspicion that is recorded as per the I.O. that there cannot be firing of two bullets at the same time and in this case therefore, he suspected that the story narrated by the applicant is improbable. So far as motive is concerned, it is stated that the deceased was having relations with many women and he used to spent huge amount on them and therefore, this applicant must have committed a murder to save the property and the prestige of the family in the society. 3 of 29 4 REVN 88-2021.odt 5. Thus, the FIR is lodged after more than four years from the date of incident. The statements of all the concerned persons were recorded in the months of September to November 2013 itself. Thus, only factor of receipt of ballistic experts report made the I.O. to suspect that it is a case of murder. After investigation charge-sheet came to be filed. On the basis of material, the learned Sessions Judge framed the charge as stated above. 6. It is in this background, the applicant has approached this Court challenging the order of framing of charge. 7. At the outset, the learned APP objected the application on the ground of maintainability. 8.
Legal Reasoning
rules enacted in Sections 25 and 26 of the Act. It is well settled that extent of information admissible must depend upon the exact nature of fact discovered to which such information is required to relate. What is allowed to be proved under Section 27 in the information or such part thereof as relates distinctly to the facts thereby discovered. The facts discovered, not merely physical object produced, but also the place from which it is produced and the knowledge of the accused as to this. Further, same standard of proof or test is not to be applied while considering discharge application as required to be considered at the time of final hearing. Further, direct evidence of conspiracy is rarely available and generally based on circumstantial evidence. 34. Thus, there has to be some foundation or material to show some participation in the act by the person against whom charges are framed. In this case, taking all the statements as it is which were immediately recorded show that none of the person has expressed even a doubt against the present applicant. The I. O. has lodged the information only in the year 2017 on receiving the ballistic experts 16 of 29 17 REVN 88-2021.odt report and on getting some opinion of expert which is not disputed. Thereafter, for the first time this witness has expressed a suspicion about this applicant. It is recorded in the year 2020 which is already discussed in above paragraphs. 35. Next is the judgment in the case of Niranjan Singh Karam Singh Punjabi (supra). It is stated that it is well settled 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 fact emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidences as it cannot be expected even at that initial stage to accept all that the prosecution story as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Thus, in this case also it can be seen that only material before the Court available goes to show only a suspicion. Going through the material as it is, the ballistic experts report does not in clear terms show that the version of the applicant is not probable. 36. Thereafter, in a case of State of U. P. Vs. Dr. Sanjay Singh (supra) paragraph Nos. 19 and 20 read as under : “19. When we scrutinise the entire material placed on record, 17 of 29 18 REVN 88-2021.odt even if unrebuked or totally accepted, we are of the view that they do not make out a case for conviction and the mere suspicion of motive cannot serve as a sufficient ground for framing the charges in the absence of any material, prima facie showing that the particular motive has passed into action and that the accused is connected with that action in question. “20. This Court in Century Spinning & Manufacturing Co. Ltd. V. State of Maharashtra while examining the scope of Section 251 (A) sub-sections (2) and (3) of the old Code corresponding to Sections 239 and 240 of the new Code has made the following observations : (SCC p. 291, para 17 : AIR p. 552, para 16)”… If on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person’s liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.” 18 of 29 19 REVN 88-2021.odt 37. Thus, in the case in hand even if the material is taken as it is, no case is made out against the present applicant except suspicion of motive. Certain suspicion cannot take place of the evidence and the prosecution on the basis of such suspicion would be a futile exercise. 38. By relying upon the judgment of the Hon’ble Apex Court in a case of Ghulam Hassan Beigh (supra), learned APP invited attention to paragraph Nos. 23, 25 and 32 to 34 which are reproduced below : “23. This Court in the case of Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, considered the scope of enquiry a judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, this Court, in paragraph 10 of the judgment, laid down the following principles : “(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if 19 of 29 20 REVN 88-2021.odt two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 25. In Sajjan Kumar v. CBI [(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court had an occasion to consider the scope of Sections 227 and 228 CrPC. The principles which emerged there- from have been taken note of in para 21 as under: (SCC pp. 376- 77)“21. “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. 20 of 29 21 REVN 88-2021.odt (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the 21 of 29 22 REVN 88-2021.odt broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” (emphasis supplied). The prosecution should have been given opportunity to 32. prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the post mortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question. 33. Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same. 34. We may now proceed to consider the issue on hand from a different angle. It is a settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court. Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by prosecution. 22 of 29 23 REVN 88-2021.odt He has only to rebut evidence bearing on the charge. The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject-matter of the charge against him. He need not cross-examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges. 39. In this judgment also this Court under Sections 227 and 228 of the Code of Criminal Procedure and the principles emerging from the same have been considered. Thus, it is clear that if two views are possible and if there is no grave suspicion against the accused, then the Court would be justified in discharging the accused. In this case, it is submitted that there is a grave suspicion against the applicant. Paragraph No. 32 of the said judgment which is reproduced above, on the basis of this the learned APP submits that the prosecution has equal right to get an opportunity to prove all the relevant facts. If the accused is discharged at the stage of framing of charge, then the prosecution is at loss of opportunity to prove its case by the evidence before the Court. No doubt, it is true that prosecution needs to get an opportunity to prove it’s case when sufficient material is available. However, when no sufficient material is available and case is only based upon suspicion then certainly going for a trial would be a futile exercise. 23 of 29 24 REVN 88-2021.odt 40. Further the learned APP relied upon the judgment of the Rajasthan High Court in a case of Mohan Ram S/o Shri Salga Ram Vs. State of Rajasthan and another in S. B. Criminal Revision Petition No. 229/2022 dated 01.04.2022. She invited attention to paragraph Nos. 15.2 to 15.5 and 16. Paragraph No. 15 is reproduced as under : “15. This Court, on the basis of the aforementioned principles judicially adumbrated by the Hon'ble Apex Court, makes the following observations: 15.1 At the stage of framing of charge, the Court is only required to prima facie presume whether a case against the accused person(s) may be made out. And that the facts that emerge from the case may be taken at face value; if they disclose the existence of ingredients constituting the alleged offences, then the charges may be framed. 15.2 The word “presuming” in Section 228 Cr.P.C. has been consciously inserted by the legislature, with the intention that if the Court strongly suspects that the accused person(s) is in any way connected with the commission of the alleged offence(s), then it may proceed to frame charges against the accused person(s). The said word must be read ejusdem generis to the opinion that there is a ground for forming an opinion that the accused person(s) has committed the alleged offence(s). 15.3 It would also be immaterial whether the said opinion has been formed either on the basis of direct, or circumstantial evidence. 15.4 The Hon'ble High Courts' revisional jurisdiction under Section 397 Cr.P.C. is limited, more so when the order of the lower court is one of framing of charge against the accused 24 of 29 25 REVN 88-2021.odt person(s). 15.5 The order passed by the court framing charges against the accused person(s), need not be a detailed order as Section 228 Cr.P.C. is tentative, meaning thereby, if a strong suspicion exists in the mind of the court at the said stage, then the same is sufficient for the court to proceed with the framing of the charge against the accused person(s). And if a prayer for discharge has been made before a revisional court, then the same may only be allowed if the court finds that the materials on record are wholly insufficient for the purpose of trial.” 41. After hearing the arguments of both the sides and after going through the judgments, this Court finds that in this case the FIR is lodged by the police officer only on the suspicion that it is this applicant who had a motive to commit murder of the deceased and therefore, she has murdered the deceased. Taking the material as it is, as already discussed, the only statements are the supplementary statements of Poonam Barge and Meera Dhas that too recorded after seven (07) years of the incident. Looking at these statements, it is clear that those are not about actual incident. From the statements it is clear that there are persons who were present at the place of incident. Their statements do not show even remote possibility of they having personal knowledge. These statements only show that there was some grudge in the mind of the applicant. However, the statement of this witness was recorded by the Police even in the year 2013 and that time, they 25 of 29 26 REVN 88-2021.odt had not even expressed a single doubt or any suspicion about any of the persons. However, statements of other witnesses would clearly show that this applicant had never even expressed any displeasure about the conduct of the deceased. It is clear that she had accepted the deceased as it is in spite of knowing about his habits and vices for many years. There is not a single doubt that there is some altercation within those 2-3 days to show that she had some intention to commit a murder. The prosecution at the most has made out only reason to look at the conduct of the applicant with suspicion. There is nothing to show that any of the persons whose statements are recorded have expressed even a doubt about conduct or intention against the present applicant. There is nothing to indicate that the behaviour or conduct of the applicant was unnatural or abnormal to give rise to any suspicion. 42. Coming to the submissions by the learned APP it needs to be kept in mind that though the prosecution needs to get an opportunity to prove its case in the trial, whether the prosecution can put forth the evidence to prove its case but, even for that it is necessary to collect some material which would go beyond mere suspicion and actually produce some material that would show involvement of the accused. 43. The Hon’ble Apex Court in the case of Yogesh @ Sachin Jagdish 26 of 29 27 REVN 88-2021.odt Joshi Vs. State of Maharashtra reported in (2008) 10 SCC 394 in paragraph Nos. 14, 15 and 16 held as below. For the purpose of convenience the said paragraphs are reproduced here. “14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. 15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as 27 of 29 28 REVN 88-2021.odt distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal (supra)] 16. In the light of the aforenoted principles, we may now consider whether or not in the present case the High Court was justified in declining to discharge the appellant. However, before adverting to the circumstances, relied upon by the prosecution in support of its primary charge that a conspiracy had been hatched to eliminate Kunal, the essential features of the offence of conspiracy need to be noticed.” 44. Thus, considering ratio of the judgment, this Court is satisfied that a clear case is made out for discharge of the applicant. In this case, till 2020, that is till recording of statements of witnesses namely Poonam Barge and Meera Dhas, there is nothing on record except some suspicion in the mind of the investigating officer. The information is lodged only because the I.O. has suspicion and there was opinion of other officer. In this case, what is on record is the opinion of the ballistic expert which in fact, matches with the story of the applicant. Taking this case from any angle, this Court finds that there is no sufficient material to show any involvement of the applicant in the offence or that she has committed a murder. This Court comes to a 28 of 29 29 REVN 88-2021.odt conclusion that the applicant has made out a case of discharge. Thus, the applicant succeeds. Hence, the following order.
Arguments
The learned senior advocate Mr. Sapkal for the applicant relied upon the judgment in a case of M/s. Mohanlal Devdanbhai Chokshi and others Vs. J. S. Wagh and another reported in 1981 CRI.L.J. 454 to show that the application is maintainable. This judgment will be discussed in the later paragraphs of the judgment. However, it is necessary to mention here itself that this Court is satisfied that the present application is maintainable and the Court has proceeded thereafter with the matter. 4 of 29 5 REVN 88-2021.odt 9. This Court has perused the material on record. First is the statement of one Poonam Barge which was recorded on 11.09.2013. She stated that, she had friendly relations with the deceased. She was working as a dancer in the bar where she came in contact with the deceased. She even has a child out of relationship. The deceased made provision of her stay and therefore, she started residing at Shevgaon. She stated that on the date of incident, the deceased had been to her house and he stayed there till late night. The applicant started calling deceased, however, he did not respond and therefore she even called this witness. Thereafter, the deceased came home. He was in a good mood and he was without any tension. In the entire statement, she did not express any suspicion about the incident. 10. The next statement is of Dr. Ugale who stated that one patient namely Poonam Ramji Satpute was admitted in his hospital and delivered a male child on 17.08.2012. After 6-7 months of delivery son of Ramji Satpute had been to hospital and had taken patient’s register having entry of delivery of Poonam as later on the register was given back on a request. 11. Thereafter, there is a statement of one Ashok Maruti Gorde who happens to be the driver working on the car of the deceased. He also narrated the similar facts as that of Poonam Barge that he had taken 5 of 29 6 REVN 88-2021.odt the deceased to the house of Sakubai and from there to his house and reached at 1.30. a.m. He stated that the door was opened by the present applicant. 12. There is also a statement of one Meera Dhas. She also stated that she had relations with the deceased and the deceased has even purchased a Scooter for her. 13. Thereafter, there is statement of son of the deceased namely Avinash who stated that the deceased had a habit of drinks. However, he specifically stated that there was no dispute in the family because of habits of deceased. He was in the house when the incident took place. On hearing shot he rushed to the hall where the applicant and the deceased were sitting. He is the first person who reached in the hall. It was told by this applicant to him that the father while looking at the condition of pistol accidentally bullet got fired and the deceased received injury. Immediately, he called his uncle Dr. Abasaheb Satpute who stays next door. They both took the deceased to the Civil Hospital at Shevgaon whereupon the Doctor on examining the body declared the deceased as dead. Then after the body was taken to Ahmednagar and then to Aurangabad for post mortem. 14. Next is the statement of another son of the applicant namely 6 of 29 7 REVN 88-2021.odt Ganesh who has also stated as the statement of his brother Avinash. Brother of the deceased namely Dr. Abasaheb Satpute also stated that on hearing the firing of the gunshot, he immediately rushed to the deceased. 15. Thereafter there is statement of the applicant recorded on 21.09.2013. She stated that since the deceased on the day of incident did not come back till late in the night, she called the deceased and as the deceased did not answer. She called the driver namely Ashok. The driver on asking the deceased informed that he is coming with the deceased within a short time. She stated that at 01.30 a.m. the deceased came back. She opened the door. The deceased asked for pistol as he wanted to remove magazine from the pistol. He wanted to check the condition of pistol and during that process the bullets were accidentally fired. The deceased shouted as “melo” on receiving the bullet injuries. It is thereafter, both the sons immediately rushed and then after Dr. Abasaheb also rushed and the deceased was taken to the Hospital. 16. Statement of Pravin - a son of the deceased shows that he was at home till 9.00 p.m. and thereafter went to a farm house. He stated that he had taken patient’s register from hospital to check Poonam Barge’s delivery as she had shown name of his father as father of her child. 7 of 29 8 REVN 88-2021.odt This was not liked by the deceased. However, he stated that thereafter there were no talks on this topic. His first statement was recorded on 23.09.2013 and his supplementary statement was recorded on 09.01.2018 in which he stated that he came to know later-on from one Chandrakant Garad that pistol of deceased was not working properly. One bullet was chocked up in chamber of the pistol that was fired by the deceased before one to one and half month of the incident. Even then there was no suspicion expressed. Two statements of daughters in law namely Jayashree and Samruddhi of the deceased were also recorded. 17. None of the persons has expressed any doubt or any suspicion about the case of death of the deceased. 18. The investigation was carried out further. However, it did not take anywhere in the direction except the theory of accidental death. 19. The I.O. was still following a matter. He repeatedly kept on sending letters to Forensic Lab/ Government Hospital through Sub Divisional Police Officer (SDPO) seeking further opinions/clarifications as to whether injury Nos. 1 and 2 mentioned in column No. 17 of P. M. notes are possible if pistol is fired from a distance of a lap to chest. Forensic Lab Government Hospital, Aurangabad, by letter dated 8 of 29 9 REVN 88-2021.odt 23.09.2020, opined that the injuries are not possible in said circumstances. This one opinion made P.I. to believe that it is a case of murder and not a case of accidental fire. 20. The I. O. recorded supplementary statements of, (i) Dr. Ugale (ii) Avinash Satpute (iii) Pravin Satpute (iv) Samruddhi Satpute (v) Jayashree Satpute on 25.12.2020. Driver Ashok’s supplementary statement came to be recorded on 28.12.2020. On the same day a statement of Chandrakant Garad also came to be recorded who stated that deceased who had met him in the year 2013 in the Police Station as he had come to deposit his pistol. The deceased told him that he also needs to deposit his pistol in the Police Station, however, there was some defect developed in the pistol. Thereupon, this witness told the deceased to show the pistol at Ahmednagar or at Pune. It is a specific case that since the pistol was to be deposited in the Police Station because of festive season, the deceased was checking the condition of the pistol and in that process he unfortunately received the injuries due to accidental fire. 21. The supplementary statements of Poonam Barge and Meera Dhas were recorded on 26.12.2020 and 29.12.2020 respectively. It is for the first time in their statements, it is stated that as the deceased was spending huge amounts on other women and for that reason the 9 of 29 10 REVN 88-2021.odt applicant committed murder. Both these statements are recorded after seven years of the incident and after three years of lodging of the FIR. 22. As is clear that the FIR is lodged only after receipt of the ballistic experts report from the Forensic Science Laboratories which, in fact, matches with the theory that two bullets were fired from the pistol of the deceased on pressing trigger only once. The possibility of receiving the injuries while test firing is not ruled out. It is necessary to state here that in the FIR, the P.O. stated that there is no possibility of firing of two bullets in one shot. This opinion is formed on the basis of the opinion which he received on asking another P.I. Thus, this opinion of another P.I. is only on oral information. 23. The I.O. collected some other material showing property purchased by the deceased in the name of other women etc. On the material collected charge-sheet came to be filed. After the case was committed to the Court of Sessions now the charges are framed. It is this order of framing of charges which is under challenge. 24. The lodging of the FIR itself is based on two things. First is that so called opinion given by one P.I. of the reserved police force and secondly the alleged motive. This alleged motive as already stated is not the theory of anyone including near relatives and it came for the 10 of 29 11 REVN 88-2021.odt first time in supplementary statements of Poonam Barge and Meera Dhas. 25. It is in this premise, the learned senior advocate submitted that this theory of murder itself is totally improbable. There is no supporting material or evidence on record. The statements which are immediately recorded do not show any doubt in the mind of any of the persons that it is the applicant who has committed a murder. There is no even remote suspicion expressed by anyone. No one speaks of any intention on the part of the applicant. There is nothing to suggest that it is a case of suicide or murder. He further stated that the deceased had no dispute with anyone on the count of his habits. There is no foundation to suspect the intention of the applicant. He further submitted that the ballistic experts report totally supports the theory of accidental fire and that two bullets can be fired at a time. From this statement he pointed out that though the deceased had relations with many other ladies, there was no complaint from his family about his relations and spending of money. He thus, stated that there was no sufficient material before the learned Sessions Judge to frame charge. 26. As against this, the learned APP submitted that the motive on the part of the applicant is very much clear as no lady would want her husband to have relations with many other ladies and to spend on 11 of 29 12 REVN 88-2021.odt them. The motive is not only to save the prestige of the family in the society, but also to save the property. There is strong ground to believe that this applicant had a motive to commit a murder. The learned APP pointed out from the FIR wherein, it is clearly recorded that the deceased was having habit of drinking and he had relations with many other ladies. There was suspicion that he was likely to transfer some of the properties of the family in the name of those ladies and to save the prestige of the family in the society the applicant has committed this act. She pointed out from the Forensic Lab report received from Government Medical College and Hospital, Aurangabad (page No. 188) that if this theory is to be accepted, then it is surprising that not a single drop of blood is found on the floor or on the cloths of the deceased. She pointed out that the injuries show that the bullets were fired from the distance of 2.5 ft. In her opinion, this is a clear case of circumstantial evidence where trial is necessary. The prosecution needs an opportunity to prove its case in the trial. This is a premature stage to reach to any conclusion and that no case is made out. 27. The learned senior advocate for the applicant at last pointed out from the column No. 20 of the post mortem report which reads as under : 12 of 29 13 REVN 88-2021.odt 20. Thorax - 1. A fully jacketed metal bullet was recovered in 4th and 5th intercostals space along midclavicular line which was 5 gm in weight, size 0.9 cm × 0.6 cm with circumference 2.6cm. (a) Walls, ribs, cartilages 2. A deformed metal bullet was recovered in 5th and 6th intercostals space along midclavicular line which was 5 gm in weight, 0.7cm base diameter. (b) Pleura Pleura punctured corresponding to (c) Larynx, Trachea and Bronchi (d) Right Lung (e) Left Lung entry and exit wound contains 1350cc blood along with 600gms of blood clots in left pleural cavity. Intact and on c/s pale Two tracks of firearm entry and exit wounds through and through were present interlobar fissure of left lung and on upper border of lower lobe of left lung with infilteration of blood reddish (f) Pericardium Punctured entry and exit wounds. (g) Heart with weight One track of firearm entry wound was present over anterior wall of right ventricle reddish Two tracks of firearm exit wounds through and through were present Posterior wall of left ventricle 13 of 29 14 REVN 88-2021.odt (h) Large Vessels (i) Additional remarks redish Empty Nil 28. The learned senior advocate pointed out specifically from the report in respect of pleura. It shows that pleura punctured corresponding to entry and exit wound contains 1350cc blood along with 600 gms of blood clots in left pleural cavity. Thus, he submits that cause of injuries is that blood saturated in the body itself in pleura and blood has not oozed out of body and it is for this reason that no blood was found on the cloths or on the floor. 29. The learned APP submit that even this needs to be examined and scrutinized during course of trial. 30. After arguing the matter at length, the learned senior advocate relied upon following judgments. (I) M/s. Mohanlal Devdanbhai Chokshi and others Vs. J. S. Wagh and another reported in 1981 CRI. L. J. 454. (II) Gangaram Kondiba Ingle and etc. Vs. State of Maharashtra reported in 2000 CRI. L. J. 336. (III) Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijja and others reported in 1990 Supreme Court 1962. 14 of 29 15 REVN 88-2021.odt (IV) State of U. P. Vs. Dr. Sanjay Singh reported in 1994 SCC, Supl. (2) 707. (V) Tika Bahadur Bhandari Vs. State of Goa reported in 2016 (1) Bom.C.R. (Cri.) 694. (VI) Suresh Chandra Bahri Vs. State of Bihar reported in 1994 CRI. L. J. 3271. 31. Learned APP relies upon the judgment of the Hon’ble Apex Court in a case of Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and others reported in 2022 SCC Online SC 913. 32. The first case is cited to show that the revision application is maintainable against an order of framing of charge. It is held that the order of framing of charge is not an “interlocutory order” within meaning of Section 397 (2). In paragraph No. 4 of the judgment this Court has discussed the judgments by the Hon’ble Apex Court and has recorded conclusion that revision is maintainable against the order of framing of charge. 33. In a case of Gangaram Kondiba Ingle and etc. (supra) in paragraph No. 9 it is concluded that, mere suspicion of motive is not sufficient to frame charges against the accused. There should be some 15 of 29 16 REVN 88-2021.odt reasonable ground to believe that person has taken part in the conspiracy or in other words reasonable likelihood of participation. There should be something to connect him with the crime. Further, it is well settled that Section 27 of the Evidence Act is an exception to the
Decision
ORDER (I) Criminal Revision Application No. 88 of 2021 is allowed. (II) The impugned order passed by the learned Additional Sessions Judge, Ahmednagar dated 25.03.2021 in Sessions Case No. 17/2021 of framing of charge against the accused/applicant is quashed and set aside and the accused/applicant is discharged in Sessions Case No. 17/2021 pending before the Additional Sessions Judge, Ahmednagar. (III) Criminal revision application is disposed of accordingly. ( KISHORE C. SANT, J. ) P.S.B. 29 of 29