High Court
Legal Reasoning
Cri.Appln. No.2344/2021:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2344 OF 2021Anil s/o Janardhan GavadeAge 37 years, Occ. Business & Agri.R/o Near Hanuman Mandir,Malharwadi, Rahuri, Ta. RahuriDistrict Ahmednagar.… APPLICANT(Orig. Accused No.5)VERSUS1.The State of MaharashtraThrough 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. AhmednagarMob. 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 ANDSANJAY A. DESHMUKH, JJ.Date of reserving judgment : 22nd December, 2023Date of pronouncing judgment : 3rd January, 2024JUDGMENT (PER R.G. AVACHAT, J.) :By this application, under Section 482 of the Code ofCriminal Procedure, quashment of Sessions Case No.128/2021, Cri.Appln. No.2344/2021:: 2 ::pending before the Sessions Court, Ahmednagar which isregistered pursuant to F.I.R. bearing Crime No.0286/2021,registered with Rahuri Police Station, District Ahmednagar for theoffences punishable under Sections 302, 201, 120-B, 212, 363,364, 341 is sought.FACTS :-2.The First Information Report (F.I.R.) has been lodgedby widow of the deceased Rohidas on 6/4/2021 by 3.00 p.m. It hasbeen averred in the F.I.R. that, her husband Rohidas (deceased)was a Press Reporter by profession. The informant along with herhusband and family members would reside at village Malharwadi,Unde Vasti, Rahuri. Deceased Rohidas left the house for Rahuri by8.00 in the morning on 6/4/2021 on his Scooty (MH-12/JH-4063).Sambhaji Varale, friend of deceased Rohidas made a call on cellphone of the informant. He told her that, unknown person abductedRohidas in a white Scorpio from the place nearby Keshav MangalKaryalaya. She, therefore, rushed there to find the Scooty at thatplace. The Chappals of the deceased were also lying there. She,therefore, immediately made a call on the cell phone of herhusband (deceased). It was found to have been switched off. Theinformant, therefore, approached the Police Station and reportedthe incident. Initially, crime for the offences punishable underSections 341 and 363 of the Indian Penal Code came to be Cri.Appln. No.2344/2021:: 3 ::registered. 3.The informant on the same day gave a supplementarystatement. It has been stated therein that, there was a dispute over18 acres of land situated at Rahuri. The dispute was between oneKanhu More (accused No.1) and the original owner of the said land.The deceased Rohidas was supporting the land owner. He hadpublished the matter in a newspaper. It is also her case that, themain accused Kanhu More tried to dodge the Scooty with hisScorpio vehicle. It has further been stated that, one KarbhariMangurde and his two sons had made encroachment on publicland. The deceased had, therefore, made a complaint to theMunicipal Council, Rahuri. In short, the informant suspectedinvolvement of these persons in abduction of her husband. 4.During the course of investigation, dead body ofRohidas was found. Injuries were noticed on his person. Section302 of the Indian Penal Code, therefore, came to be invoked.Balasaheb Mangurde and his two brothers were found to have notbeen involved in the crime. Charge sheet came to be filed againstKanhu More and 5 others including the present applicant.5.Close reading of the charge sheet and the policepapers would indicate that it is the case of the prosecution that Cri.Appln. No.2344/2021:: 4 ::Kanhu More and accused Nos.2 to 4 namely Taufik Shaikh ArjunMali and Akshay Kulthe abducted the deceased and committed hismurder. The present applicant is alleged to have been inconspiracy with all of them to eliminate the deceased. He is alsoalleged to have harboured those 4 assailants. Section 212 of theIndian Penal Code has, therefore, been invoked against theapplicant. 6.Heard. Learned counsel for the applicant would submitthat, it is a case of no material to proceed against the applicant forany of the offences. According to him, although the applicant drovethe deceased to a particular place post the crime, there is nothingto indicate him to have knowledge of the main culprits who havecommitted the offence in question. He would further submit that, sofar as regards the offence of criminal conspiracy is concerned,there is no shred of material. The trial Court has framed the chargefor the offence under Section 302 read with 120-B of the IndianPenal Code against the applicant. He, therefore, urged forquashing of the entire proceedings.7.The learned counsel appointed to represent therespondent No.2- informant and the learned A.P.P. would, on theother hand, submit that, there could hardly be direct evidence of theoffence of conspiracy. Involvement of a culprit in such offencecould only be ascertained from surrounding circumstances, conduct Cri.Appln. No.2344/2021:: 5 ::of the accused and knowledge. Three circumstances have beenadverted to, namely, statement of widow of the deceased, crimescene panchanama and the statement of brother of the applicant.Reliance on the judgment of the Apex Court in case of Rajiv KumarVs. State of U.P. & anr. [ AIR 2017 SC 3772 ] has been placed toultimately urge for rejection of the application. 8.Considered the submissions advanced. Perused therelevant police papers. As per the case of the prosecution itself themurder was committed by Kanhu More (accused No.1) and histhree associates – accused Nos.2 to 4. The applicant is not allegedto have been directly involved in the crime in question. The F.I.R.was lodged against unknown person. The informant, in hersupplementary statement, suspected involvement of co-accusedKanhu More and others. The question is, whether there is materialto proceed against the applicant for the offences punishable underSections 302 and 212 read with 120-B of the Indian Penal Codeand related offences. 9.Section 120-B of the Code of Criminal Procedure readsthus : “120-B. Punishment of criminal conspiracy :—(1)Whoever is a party to a criminal conspiracyto commit an offence punishable with death, Cri.Appln. No.2344/2021:: 6 ::imprisonment for life or rigorous imprisonment fora term of two years or upwards, shall, where noexpress provision is made in this Code for thepunishment of such a conspiracy, be punished in thesame manner as if he had abetted such offence.(2)Whoever is a party to a criminal conspiracyother than a criminal conspiracy to commit anoffence punishable as aforesaid shall be punishedwith imprisonment of either description for a termnot exceeding six months or with fine or withboth..”10.In case of Rajiv Kumar (supra), it has been observed : -“44. The essential ingredients of the offence ofcriminal conspiracy are: (i) an agreement betweentwo or more persons; (ii) the agreement mustrelate to doing or causing to be done either (a) anillegal act; or (b) an act which is not illegal initself but is done by illegal means. It is, therefore,plain that meeting of minds of two or morepersons for doing or causing to be done an illegalact or an act by illegal means is sine qua non ofcriminal conspiracy. It is extremely difficult toadduce direct evidence to prove conspiracy.Existence of conspiracy and its objective can beinferred from the surrounding circumstances andthe conduct of the accused. In some cases,indulgence in the illegal act or legal act by illegalmeans may be inferred from the knowledge itself.”11.Involvement of an accused in the crime can be madeout by pointing out him to be an accessory before commission ofthe crime, at the time of commission of crime or post commission of Cri.Appln. No.2344/2021:: 7 ::the crime. The record indicates the present applicant to havefriendly relations with the co-accused Kanhu More. That is,however, not sufficient to rope him in the offence of conspiracy tocommit murder. Our attention has been adverted to a statement ofthe widow of the deceased, recorded about a month after thealleged incident. It has been stated therein that, once her husband(deceased) had informed her that the present applicant was anassociate of main accused Kanhu More. The applicant would keepwatch on the movements of the deceased. The statement isconspicuously silent to state as to when the deceased had sharedthis information with her. This alleged statement would not becovered by Section 32(1) of the Evidence Act. There is nothing toindicate as to why she did not disclose the same in the F.I.R. or inher first supplementary statement. There is no material to indicatethe present applicant to have had kept watch on the movements ofthe deceased on the day of the incident or within a period inproximity next before the crime in question. The facts in the case ofRajiv Kumar (supra) were altogether different. The involvement ofthe co-accused Smt. Neela Yadav was writ large therein. She was,therefore, convicted for the offence of conspiracy. Factual matrix ofthat case are found in paragraph No.47 of the judgment which arereproduced hereinbelow :-“47. So far as the role of co-accused appellant Cri.Appln. No.2344/2021:: 8 ::Neera Yadav is concerned, at the relevant timeboth the appellants were public servants. NeeraYadav played a specific role facilitating theappellant Rajiv Kumar to obtain plot No.27 inSector-14A at less premium. Being CCEO ofNOIDA, appellant Neera Yadav signed variousnotes put up before her like Ex. Ka-34(15.10.1994), conversion of “guest house” to“residential” and allotment of plot No.27 inSector-14A. On perusal of the exhibits, it is clearthat appellant Neera Yadav was involved in all thestages of conversion of the “guest house” to“residential”, in violation of rules allotment of plotNo.27 to appellant and also allotment of additionalarea to the appellant Rajiv Kumar. Oftenconspiracy is hatched in secrecy and for provingthis offence substantial direct evidence may not bepossible to be obtained. The evidence andmaterials on record amply show that there was aprior concert of minds of the appellants inconversion of the “guest house” into “residential”and allotting the same to appellant by flouting therules and the circular.”12.Then what is relied on are the statements of brother ofthe applicant and one Ravindra Kale and Abasaheb Patil. Thestatement of Ajay Gavade (brother of the applicant) would indicatethat, on the day of the incident, the applicant was at home. Ajayhad come from Pune for death anniversary of their grandmother.The applicant left the house by 6.00 in the evening. He did notcome home on that day. The applicant informed his brother thatKanhu More has committed murder of the deceased Rohidas. Theother two statements namely of Ravindra Kale and Abasaheb Patil Cri.Appln. No.2344/2021:: 9 ::would indicate that Kanhu More along with his 3 associates had firstbeen to the resident of Ravindra Kale. Kanhu More parked hiswhite Scorpio behind the house of Ravindra Kale. He made aphone call to the present applicant and asked him to collect a sumof Rs.1,50,000/- from his residence. The applicant obliged andcame to a particular place i.e. near Hotel Sai Shraddha. From thatplace, he drove Kanhu More to the house of Abasaheb Patil. Therethe applicant asked for liquor. Since no liquor was available, theapplicant left that place. 13. There is strong material to indicate the applicant tohave been close associate of the main accused Kanhu More. AtKanhu More’s instance he collects money from his residence. Thendrove him in a blue car to Hotel Sai Shraddha. From that place hedrove the main accused Kanhu More to the place of witnessAbasaheb Patil. In spite of there being death anniversary of hisgrandmother, he did not return home. His cell phone was foundswitched off. These facts indicate the applicant to have beeninvolved in assisting the main accused Kanhu More and hisassociates post commission of the crime. The applicant can besaid to have committed offence of harbouring offender. So far ascircumstance relating to scene of offence panchanama wherein theapplicant is stated to have distributed sum of Rs.1,50,000/- amongthe co-accused is concerned, the same is also conduct post Cri.Appln. No.2344/2021:: 10 ::commission of the crime.14.It is reiterated, there is nothing to indicate the presentapplicant to have been accessory before or at the time ofcommission of the crime. He, therefore, cannot be charged with anoffence of conspiracy to commit murder. So was the conclusion ofthe investigating officer recorded on page 82 of the Charge Sheet.For better appreciation, the relevant matter in that regard isreproduced below : “,danjhr lnj xqUg;kps >kys riklkr dkWye uacj 10e/khy vkjksih ukes 1½ dkUgq xaxkjke eksjs] o; 46 o”ksZ 2½rksQhd eqDrkj ‘ks[k] o; 21 o”ksZ 3½ vtqZu mQZ ykY;kfodze 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.kktoGclqu ,d= ;soqu] ;krhy e;r jksfgnkl jk/kqth nkrhj o;49 o”ksZ jk- maMs oLrh eYgkjokMh jksMjkgqjh] ;kps’kh ;krhy eq[; vkjksih dkUgq xaxkjke eksjs ;kpslkscr 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 jksfgnkljk/kqth nkrhj gk MkW- ekus ;kaps orhus ek- U;k;ky;kpsdkedkt ikgr gksrk o osGksosGh R;kps n{k >qatkji=dkj ;k orZeku i=ke/;s ckreh Vkdqu cnukeh dj.;kph/kedh nsr vlY;kus] R;kpsoj ikGr Bsoqu] ;sR;k vkBfnolkr R;kps vigj.k d#u] R;kyk ftos Bkj ek#u]R;kps izsrkps foYgsokV yko.ksckcr QkStnkjh ik= xqUg;kpkdV jpyk gksrk- ;ko#u lnj xqUg;krhy vkjksih uacj 1 rs4 Hkknfo dye 120 ¼c½ izek.ks xqUgk dsY;kps rksgervls-;krhy vkjksih dzekad 2½ rksQhd eqDrkj ‘ks[k ;kus ;krhy Cri.Appln. No.2344/2021:: 11 ::e;r jksfgnkl jk/kqth nkrhj ;kpsoj fn- 06-04-2021jksth ikGr Bsoqu] R;kps ckcr vkjskih uacj 1½ dkUgqxaxkjke eksjs 3½ vtqZu mQZ ykY;k fodze ekGh 4½v{k; lqjs’k dqyFks] ;kaps laidkZr jkgqu vkjksih dzekad1 ;kph LdkWihZvks xkMh dzekad ,e,p 17] ,>sM 5995fgpk okij d#u] ;krhy e;rkl ftos Bkj ekj.;kpsmnns’kkus R;kpk jLrk vkMoqu] R;kl vkjksih dzekad 1 ;kpsojhy xkMh e/;s cGtcjhus ?kkyqu iGoqu usY;kps vkjksihdzekad 1 rs 4 ;kauh Hkknfo dye 363] 364] 341izek.ks xqUgk dsY;kps rksger vls-;krhy vkjksih dzekad 1 rs 4 ;kauh ;krhy vigjhrO;Drh ukes jksfgnkl jk/kqth nkrhj ;kl LdkWihZvks xkMhr?kkyqu iGoqu] njMxko FkMh f’kokjkr QkWjsLV e/;s usoqu]R;kl ftos Bkj ekj.;kps mnns’kkus yks[kaMh ikbZi o nxMkusekjgk.k d#u ftos Bkj ek#u [kqu d#u] R;kpk e`rnsgLdkWihZvks xkMhr Vkdqu] iqjkok u”V dj.;kps mnns’kkus R;kpsizsr jksVjh Dyc CyM cWaads toG Qsdqu nsoqu] iGqu tkrkauk;krhy e;rkpk eksckbZy Qksu Qsdqu fnyk ;ko#u vkjksih1 rs 4 ;kauh Hkknfo dye 302] 201 izek.ks xqUgkdsY;kps rksger vls-;krhy vkjksih dzekad 5 vfuy tukZ/ku xkoMs jk- jkgqjh¼Qjkj½ ;kus vkjksih uacj 1 rs 4 ;kauk rs xqUgk d#uiGowu vkY;kuarj R;kauk vkJ; nsoqu] vkfFkZd enr d#u]R;kauk Lor%ps okgukr Qjkj gks.;kl enr dsyh vkgsEg.kqu ;krhy vkjksih uacj 5 ;kus Hkknfo dye 212izek.ks xqUgk dsY;kps rksger vls-”15.For all the aforesaid reasons, in our view, theapplication partly succeeds. The proceedings in Sessions CaseNo.128/2021, pending before the learned Sessions Court,Ahmednagar, for the offence punishable under Section 302 readwith 120-B of the Indian Penal Code stands quashed so far asregards the present applicant is concerned. Needless to mention,
Legal Reasoning
Cri.Appln. No.2344/2021:: 12 ::the applicant shall be proceeded against for the offence punishableunder Section 212 of the Indian Penal Code and the relatedoffences, if any.The Criminal Application stands disposed of. 16.Fees of Mr. N.R. Shaikh, learned appointed counsel forrespondent No.2 is quantified at Rs.15,000/- (Rupees fifteenthousand).(SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.) fmp/-