Criminal Application No. 1405 of 1999

18th January, 2000

Petitioner Counsel: Mr. ADHIK SHIRODKAR WITH MR. RAJENDRA SHIRODKAR, Smt. V.V. Thorat, Mr. Pravin Singhal

Cases Cited:
Sukhvinder Singh and Ors. vs. State of Punjab, 1994 SCC (Cri) 1376 [Para 4]
Sailesh vs. Dilip Mehta and anr., 1980 Bom. C.R. 208 [Para 4]
Satish Mehra vs. Delhi Administration and anr, 1996 SCC (Cri) 1104 [Para 4]
S.P. Bhatnagar vs. The State of Maharashtra, 1979 Cri.L.J. 566 [Para 11]
Union of India vs. Prafulla Kumar Samal, 1979 Cri.L.J. 154 [Para 11]
Inderjit Singh vs. State of Punjab, AIR 1991 SC 1674 [Para 12]
State of Maharashtra vs. Priya Sharan Maharaj, AIR 1997 SC 2041 [Para 13]
State of Maharashtra vs. Som Nath Thapa reported, AIR 1996 SC 1744 [Para 15]
State of Karataka vs. L. Muniswamy, AIR 1977 SC 1489 [Para 15]
Stree Atyachar Virodhi Parishad, (1989) 1 SCC 715 [Para 15]
State of West Bengal vs. Mohd. Khalid, (1995)1 SCC 684 [Para 15]

JUDGMENT

JUDGMENT :- Both these criminal applications are filed for discharge from Sessions Case No. 858 of 1993 challenging the orders dated 6th April 1999 and 31st August 1999 passed by the two learned Additional Sessions Judges, Greater Bombay rejecting the respective applications of the applicants made for discharge. The applicants in the above two applications are two of the three accused against whom offence under Sections 302 and 201 read with Section 34 of IPC were registered by Vile Parle Police Station under C.R. No. 163 of 1993 in respect of the death of one Manohar Singh under suspicious circumstances. Since both the applications arise in respect of common crime registered against both the applicants, these two petitions are being disposed of by this common judgment.

2. The brief facts, involving the applicants-accused in the aforesaid offences, are as follows:

Deceased Manohar Singh was working as Supervisor in Italino Yard Marble Shop which was run at Vile-Parle (East), Mumbai by a partnership firm of which Ramesh @ Romi Ratan Lalwani, the applicant in Criminal Application No. 1405 of 1999, was the partner. Dhruv Kumar Jha, the applicant in Criminal Application No. 2886 of 1999, was working as a watchman in the said shop. The police received information on 2/4/1993 about one dead body lying in a Nala in front of the above Italino Yard Marble Shop.The police went to the Nala and took out the dead body from the said Nala and registered offence under C.R. No. 163 of 1993 on 2/4/1993 initially against unknown persons. During the course of investigation, the police recorded statements of some witnesses and arrested three accused persons on 8/4/1993 i.e. the above two applicants and one more accused by name Nandlal who is shown to be the friend of the applicant-Lalwani. The dead body was identified to be that of Manohar Singh who was working as supervisor in the shop of applicant-Lalwani. The body was sent for post mortem and the report of the post mortem shows that the deceased died of asphyxia due to strangulation. After investigation the chargesheet was filed on 24/6/94 in which the applicant Jha who was a watchman in the above shop is shown as accused no.1 and applicant Lalwani is shown as accused no.2 and accused Nandlal is shown as accused no.3.

3. Both the applicants made applications for discharge before the Sessions Court on the Ground that the evidence on record is not sufficient to Prosecute the applicants. Applicant-Lalwani filed Criminal Misc. Application No. 167 of 1999 in the Sessions Court for discharge before the charge was framed which was rejected by the Additional Sessions Judge, Greater Bombay, on 6th April 1999. Applicant-Jha filed separate application for discharge on 20th August 1999 which came to be rejected by order of another Additional Sessions Judge, Greater Bombay on 31st August 1999. Against the said orders, both the applicants preferred the above applications in this Court for quashing the orders rejecting their applications for discharge and prayed for their discharge from the aforesaid Sessions Case. The counsel for the parties are heard at length.

4. Mr. Shirodkar the learned counsel appearing for applicant-Lalwani (Accused No.2) contended that this is a case where there is no legal evidence against the applicant to prosecute him and, therefore, the applicant should not be made to undergo the trauma of a trial. Taking me through the statements of witnesses, Mahendra Chaudhary, the watchman of adjoining shop and one Nirmala Pinge and the panchanama dated 8/4/1993 with regard to the discovery of rope and knife from the shop of Lalwani at the instance of accused Jha and the order of the Additional Sessions Judge, Mr. Shirodkar contended that there is no legal evidence to convict the applicant and, therefore, he should be discharged. Referring to the panchanama and the statement of accused Jha for the disvocery of rope and knife from the shop of Lalwani at his instance, Mr. Shirodkar contended that the portion of the statement of accused Jha, that there was heated argument between the applicant Lalwani and deceased Manohar Singh regarding cheque in the night in the office room of the said shop and thereafter Lalwani called him and asked him to bring a rope and then he took a knife and went to the gate where rope was tied and cut a piece of the said rope and gave to Lalwani and rest of the piece of rope was hidden by him under the marble stacks, was not relevant and is not admissible in evidence. He cited the decision of the Supreme Court in the case of Sukhvinder Singh and ors. Vs. State of Punjab reported in 1994 SCC (Cri) 1376 where it is held that under Section 27 of the Evidence Act only so much of the statement of an accused is admissible in evidence as distinctly leads to the discovery of a fact. He, therefore, emphasises that, if at all, only the disvocery of piece of rope and the knife from under the marble stacks from the shop of applicant-Lalwani and the statement made with regard thereto only is admissible and not the earlier portion of the statement about the heated argument between the applicant-Lalwani and the deceased with regard to the cheque and that Lalwani called and asked him to bring a piece of rope. There cannot be dispute with regard to the said contention raised by Mr. Shirodkar. He further argued that the statement of Nirmala Pinge, that a fortnight ago she noticed three male persons walking towards the gate of the office of Italino Yard, Marble Shop who were subsequently identified by her in Test Identification Parade to be the three accused persons, would not carry case of the prosecution to the extent of involving the applicant in the offence of murder. He also argued that the statement of Mahendra Choudhary, the watchman of the adjoining marble shop that he saw three persons and the deceased going to the office of said marble shop of applicant-Lalwani on the night of 29th March 1993 at 11.40 p.m. would not also carry the prosecution case further to involve the applicant in the death of Manohar Singh. He further contended that in the absence of eye witnesses the case has to depend on the circumstantial evidence and the circumstances must establish a link and should lead only to one hypothesis that it is the applicant who was responsible for the death of the deceased. He lastly insisted that the court should at this stage, scrutinise the evidence and satisfy itself that the material collected by the prosecution is legally sufficient to base conviction of the applicant-accused. He cited, in support of his contention, the judgment of the Division Bench of this Court in the case of Sailesh Vs. Dilip Mehta and anr. reported in 1980 Bom. C.R. 208 in which the Division Bench of this Court dissected different pieces of evidence relied on by the complainant in a private complaint for an offence of adultery under Section 497 of IPC and upheld the order of the Additional Sessions Judge holding that there was no legal evidence for framing charge. He lastly cited in support of his contention the judgment of the Supreme Court in the case of Satish Mehra vs. Delhi Administration and anr. reported in 1996 SCC (Cri) 1104. This was a case where the Supreme Court was considering whether there was sufficient ground for framing the charges and proceeding against the accused for the offences under Sections 354, 498-A and 376 of IPC.

5. The aforesaid arguments advanced by Mr. Shirodkar were fully supported by Smt. Thorat, the learned advocate appearing on behalf of the applicant-accused Jha in the companion Application. She brought to my notice the order of the learned Metropolitan Magistrate passed on 21st April 1993 whereby he did not record the confession of accused Jha on the ground that when he was produced before the learned Magistrate he stated that he wanted to make confessional statement because "Saheb"(i.e. the police officer) had told him to make a statement and had stated that he was continuously beaten by the police while in police custody. In the above circumstances, it was argued by Smt. Thorat that even the statement made by the applicant-Jha and the discovery of the rope and knife made at the instance of this applicant should not be given any credence.

6. As against this Mr. Singhal, the learned APP, took me through the statements of few more witnesses and submitted that there is ample evidence for the prosecution to take the applicants to the trial. He contended that at this stage what is required to be seen by the court is whether there is material to frame the charge and this court cannot appreciate the evidence or the material collected by the prosecution at this stage.

7. In support of his contention, Mr. Singhal, APP cited the decisions of the Apex Court to which reference will be made hereafter. After taking me through the statements of the witnesses, the learned APP summarised the material and the following circumstances which connect the applicants- accused with the crime in question.

8. Firstly, it is pointed out that deceased Manohar Singh was working as Supervisor in the marble factory of applicant Lalwani under the name of Italino Yard Marble Shop where the co-accused Jha was employed as a watchman. The second circumstance relied on by the prosecution is that witness Mahendra Chaudhary who was working as a watchman in the adjoining marble shop saw accused Lalwani and Nandlal alighting from Maruty Gypsy at about 11.40 p.m. on 29th March 1993 near the marble shop of the accused and going to the said shop. He further noticed deceased Manohar Singh going inside the office of the accused 15 minutes thereafter. Thirdly, he relies on the statement of the witness Nirmala Pinge noticing three male persons near the office of Italino Yard Marble Shop whom she subsequently identified at Test Identification Parade held on 19/3/1993 as the three accused persons. The next circumstance relied on by the prosecution is that witness Mahendra Choudhary, the watchman of the adjoining shop noticing that rope used for tying the gate of the shop (shop of the accused Lalwani) was missing. He identified the two pieces of rope, one piece discovered at the instance of accused Jha from the shop of accused Lalwani and other piece found tied around the neck of the dead body of deceased Manohar Singh as the one which was used for tying the gate of the marble shop and was missing since 30th March 1993. The prosecution also relies on the report of the C.A. according to which the rope tied around the neck of the dead body was part of the same piece of rope which were discovered at the instance of accused Jha from under the stacks of marble stones in the shop of accused Lalwani. The prosecution then relies on the post-mortem notes giving cause of death as asphyxia due to strangulation. There is a statement of witness Tushar Gawade who had purchased marble from deceased Manohar Singh from the shop of accused Lalwani on 28th March, 1993 who identified the clothes found on the dead body to be one which were worn by the deceased on 28th March 1993 when he purchased marble from the said shop. The next circumstance is that the body of the deceased was swollen and it had become difficult to identify the dead body and was mainly identified because of the clothes worn by the deceased which shows that the deceased had died few days before his body was recovered on 2/4/1993. This supports the statements of witnesses that the deceased was not seen after 28th March 1993. The next circumstance is that the dead body was recovered from the Nala just in front of the shop of the accused Lalwani which is about 10-20 ft. away from his shop and still ignorance was pleaded about his whereabouts by the accused persons, one of whom was the employer and another was the watchman of the shop.

9. Mr. Singhal also relies on the following circumstances by way of subsequent conduct of the accused which is relevant under Section 8 of the Indian Evidence Act. In this respect Mr. Singhal relies on the statement of Mohan Suravase, Asstt. Police Inspector who saw accused Lalwani and Jha at the shop while the panchanama of the dead body was being prepared around 4.30 p.m. on 2/4/1993 and the body was taken charge of after removing it from Nala. According to the witness though these two accused were standing in front of their shop at the relevant time when the body was being taken out and the panchanama was prepared of the dead body they did not come forward to identify the dead body and soon disappeared from there. Mr.Singhal then relies on the conduct of the applicants that they did not lodge complaint with the police about the disappearance of the deceased since 28/3/93 though they were informed by Rammilan Yadav with whom the deceased was staying. The deceased was working as Supervisor in the said marble factory and was staying along with this witness Yadav. As the deceased did not go to his residence for sleeping, witness Yadav naturally went to enquire from applicant employer but they did not bother about the disappearance of the deceased. It is highly unnatural that when a Supervisor of the shop was missing for few days, and a dead body was lying in the Nala just in front ofthe shop of the applicant hardly 20ft. away from the shop, yet the applicants with whom the deceased was associated pleaded ignorance about having noticed the dead body for all these days nor went near the dead body out of natural human curiosity when the same was being taken out by the police.

10. The above circumstances, in my view, create not merely a suspicion but a strong suspicion against the accused for their involvement in the crime. Rammilan Yadav made enquiries about the whereabouts of the deceased with the accused but the accused remained silent even at the time when they were not supposed to remain silent, except when they had guilty mind.

11. The question, therefore, is whether in the face of the above circumstances can the accused be discharged at this stage on the ground that there is no legal evidence against the accused persons to base the conviction of the accused. The reliance by Mr. Shirodkar on the judgment of the Division Bench of this Court in Sailesh Mehta's case where the accused was discharged for offence of adultery under Section 497 of IPC on a private complaint cannot be applicable for a charge of murder in the aforesaid circumstances. That was a case where a private complaint was filed and the offence alleged was of adultery against the accused which generally is difficult to establish. The judgment cited by Mr. Shirodkar in the case of S.P. Bhatnagar and anr. vs. The state of Maharashtra reported in 1979 Cri.L.J. 566 pertains to the circumstantial evidence after the trial had taken place where it was observed that the circumstances established should be consistent only with the hypothesis of the guilt of the accused. The ratio of that case can be applied and considered, in my view, at the trial after the entire evidence is led by the prosecution. The judgment of the Supreme Court in Satish Mehra's case relied on by Mr. Shirodkar, though relates to the stage of framing of charge and discharge of the accused, pertains to an offense of incestuous sexual abuse allegedly committed by the father against his own three year old daughter where the wife was the complainant. The two Judge Bench of the Supreme Court while considering the arguments advanced for the discharge of the accused, relied, in para 11 of the judgment, on the observations of the Supreme Court made in earlier decision in the case of Union of India vs. Prafulla Kumar Samal (1979 Cri.L.J. 154) where it was observed as follows:

"By and large however if 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."

In the above Supreme Court case the Court also considered the impending consequences befalling an innocent child i.e. a girl of three years and was of the view that the material collected in the evidence was insufficient and the trial was "going to be nothing but a farce". In the instant case the narration of the aforesaid circumstances clearly shows that the suspicion against the applicants - accused is more than grave suspicion for their involvement in the crime.

12. The reliance placed by Mr. Shirodkar on the judgment of the Supreme Court in the case of Inderjit Singh Vs. State of Punjab reported in AIR 1991 SC 1674 for the proposition that the only circumstance that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused, would be of no help to the accused, in as much as the prosecution is not relying in the instant case only on the circumstance of last seen together.

13. Mr. Singhal, the learned APP. on the other hand, relied on the decision of the Supreme Court in the case of State of Maharashtra Vs. Priya Sharan Maharaj reported in AIR 1997 SC 2041 where the Supreme Court, while allowing the appeal of the State against the order ofthe High Court discharging the accused, held that High Court cannot seek independent corroboration at the stage of framing of charge and quash the charge and discharge the accused, observing in para 8 of the judgment that the court, at the stage of Sections 227 and 228 i.e. framing of the charge, has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

14. The aforesaid observations repel the submission made on behalf of the applicants-accused that the court should find out whether the material collected by the prosecution is likely to lead to a conviction of the accused, otherwise the accused should be discharged.

15. Mr. Singhal, the learned APP cited yet another recent decision of the Supreme Court delivered by a Bench of Three Judges in the case of State of Maharashtra vs. Som Nath Thapa reported in AIR 1996 SC 1744. In the aforesaid decision the Supreme Court was considering when the accused can be discharged at the time of framing of charges. The Supreme Court had considered the various sets of provisions with regard to the discharge and framing of the charges either on a private complaint in a summons case and in a warrant case or on police report under Sections 227,228,239,240 and 245 of Cr.P.C. In the said decision, the Supreme Court had referred to its previous judgment, in the case of State of Karnataka vs. L. Muniswamy (AIR 1977 SC 1489) where it was held that at the stage of framing of the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. In para 29 of the judgment Supreme Court relied on its dictum in the earlier judgments in the cases of Stree Atychar Virodhi Parishad (1989) 1 SCC 715 and State of West Bengal vs. Mohd. Khalid (1995) 1 SCC 684 where it was held that what the court has to see while considering the question of framing the charge is whether the material brought on record would reasonably connect the accused with the crime and no more is required to be inquired into. In this case the circumstances narrated above would leave us in no manner of doubt that the material on record does reasonably connect the accused with the crime. In para 30 of the aforesaid judgment the Supreme Court did not accept the counsel' s theory of prima facie case for the purpose of framing charges which would make the accused liable to convict unless rebutted. The Supreme Court referring to its decision in Antulay's case (AIR 1986 SC 2045) observed that in their view "better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exits, and so, frame charge against him for committing that offence."

Again in para 32 of the judgment in that case, the Supreme Court observed as follows:

"32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

(Underlining supplied)

16. In my view, in the instant case, circumstances narrated above do show that there is ground for presuming that the applicants have committe the offences and, therefore, charge can be framed against them. The aforesaid observations of the Supreme Court clearly establish that what is required to be seen at the stage of framing of the charge is if the court is of the view that the accused might have committed the offence, it can frame the charge. In my opinion, the above circumstances do justify the view that the accused might have committed the offence and, therefore, the charge could be framed against them. Whether ultimately the trial Court, after appreciating all the evidence led before it, finds enough material or chain of circumstances leading to only hypothesis to the guilt of the accused or not is the question to be considered not at this stage, but at the stage of trial, after evidence is led by the prosecution.

17. For the aforesaid reasons, in the context of the circumstances narrated above and the decisions of the Supreme Court, I find that there is ground to frame the charge and proceed against the accused and there is no reason to interfere with the impugned orders of the Sessions Court rejecting the applications of the applicants-accused for discharge. In view of the fact that the offence was committed in the year 1993, it is desirable to expedite the trial.

18. It may be made clear that the observations made in this order are made only for the purpose of considering the applications for discharge which in no way should weigh with the trial court at the time of appreciating the evidence and trial court has to consider the evidence led before it independent of the observations made in this order.

19. In the result, both the petitions are dismissed. Rule is discharged in both the petitions. The trial is expedited.

Petition dismissed.