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2017 Supreme(Bom) 130
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
SUMEET GANPATRAO BACHEWAR - APPLICANT
Vs.
THE STATE OF MAHARASHTRA & ANR. - RESPONDENTS
CRIMINAL REVISION APPLICATION NO. 383, 377 OF 2016
Decided On : 01-02-2017
For the Applicant : Mr. S.V. Kotwal, Mr. A.Y. Patil, Mr. Dixit, Mrs. Sudha Dwivedi
For the Respondent-State: Mrs. A.S. Pai, Mr. Sanjiv Sawant
Important Point: At this stage entering into the realm of appreciation of evidence and marshalling of evidence is not permitted and thus it is not possible to exclude any of the dying declarations from consideration by holding that those are untrustworthy or unreliable. One will have to accept them as they are by assuming that the deceased was in a fit condition to make those statements. All oral dying declarations will have to be accepted as true at this stage
Headnote:Criminal Procedure Code, 1973 - Sections 227 and 228-Charges-Framing of.-If judge is of the opinion that there are grounds for presuming that the accused has committed the offence, he is required to frame charge.
When the Judge considers that there is no ground for proceeding against the accused, he is required to discharge the accused by recording his reasons. However, if the Judge is of the opinion that there are grounds for presuming that the accused has committed the offence, then he is required to frame charge. At this stage detailed scrutiny of material gathered by the prosecution in order to examine whether the same is sufficient for recording the conviction or not is absolutely not essential. What is required is examination of the material from the angle whether the same constitute sufficient ground for proceeding against the accused. Some prima facie material with strong suspicion regarding commission of the alleged offence by the accused is sufficient for framing charge against him.
Criminal Procedure Code, 1973 - Section 228-Framing of charges-Conditions for.-It is well-settled that at the stage of framing of charges, the Court is required to confine its attention to only those materials collected during the investigation which can be legally regarded as admissible evidence.
It is thus clear that general expressions suspecting a particular individual by the deceased are not admissible when the cause of death of the deceased comes into question. In this view of the matter, statements made by deceased, being his general expression of suspicion, fear and apprehension are not admissible in evidence. It is well-settled that at the stage of framing of charges, the Court is required to confine its attention to only those material collected during the investigation which can be legally translated into evidence. The requirement of law is to have legally admissible evidence. The material which cannot ultimately be translated into legally admissible evidence cannot be looked into while framing the charge. The Apex Court in the matter of Suresh Budhamal Kalani @ Pappu Kalani v. State of Maharashtra, 1998 SCC (Cri) 1625 and in particular paragraph Nos. 6 and 7 has observed that at the stage of framing of the charge, the Court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence that the prosecution may adduce in the trial which would commence only after the charges are framed and accused denies the charges.
This judgment of the Hon`ble Supreme Court is followed by the Court in cases of Arun Gawli v. State of Maharashtra, 2007 (3) Mh LJ 774 : 2007 (1) Mh LJ (Cri) 633 : 2007 All MR (Cri) 2562 and Laxmi Koli Babita v. State of Maharashtra, 2004 Mh LJ Online (Cri) 7 : 2005 All MR (Cri) 571. In the case in hand, even if the last oral dying declaration of deceased allegedly made to his son `S` in the morning hours of 16th February, 2013 at the Hiranandani fortis Hospital found in his statement dated 20th February, 2013 recorded by the Investigator is accepted as it is, then also the same is not capable of being translated into legal evidence as it is nothing but a general expression indicating apprehension, suspicion and fear of the deceased. It is not constituting circumstances of transaction which resulted in death of deceased and as such cannot be translated into legal evidence.
Indian Penal Code, 1860 - Section 302-Criminal Procedure Code, 1973, Sections 227 and 228-Murder application for discharge of petitioners.-Since there was prima facie sufficient material on the record to conclude that there was strong as grave suspicion against the revision petition/accused No. 5, it was held to be not justified to discharge him by holding that the lower Court erred in rejecting his revision petition.
It is, thus, clear that, on the day of the incident, revision petitioner/accused No. 5 `A` was throughout in the company of accused No. 2 `E` till commission of murder of `S` by two co- accused. Even if this revision petitioner/accused No. 5 `A` might not have alighted from the Innova Car by which they were travelling, that by itself, does not indicate that there were no meeting of minds and sharing of thoughts for ultimate object of eliminating `S` between revision petitioner/accused No. 5 `A` and accused No. 2 `E`. The C.C.T.V. footage gathered by the prosecution is reported to be showing presence of the Innova car of this revision petitioner/accused No. 5 `A` in the vicinity of the spot of the incident and evidence on record shows that he was in the company of the contract killer accused No. 2 `E` at that time. This material is prima facie sufficient to conclude that there is strong and grave suspicion against this revision petitioner/accused No. 5 `A`, and as such, it is not justifiable to discharge him by holding that the lower Court erred in rejecting his revision petition. Statement of the garage owner `A` recorded by the prosecution shows that on 28th February, 2013 i.e. after the incident of murder of `S`, this revision petitioner/accused No. 5 `A` got outer look of his Innova Car changed by colouring it and changing the strip. The material found against this revision petitioner/accused No. 5 `A` constitutes sufficient ground for proceeding against him and it cannot be said that there is absolutely no material to connect him with the alleged offence.
1. “Before we proceed to consider the case, we must remind ourselves the maxim “judex damnatur cum nocens absolvitur” which means that a Judge is condemned when a guilty person escapes punishment. But, at the same time, we cannot forget that credibility of the justice delivery system comes under severe strain when a person is put on trial only for acquittal.........”
These are observations of the Hon'ble Apex Court in the matter of Babubhai Bokhiria and Another vs. State of Gujarat and Others, reported in (2014) 5 Supreme Court Cases 568. Similarly, in Madan Mohan Singh vs. State Of Gujarat and Another reported 2010 (8) SCC 628, the Hon'ble Apex Court has observed thus :
“The criminal trial is not exactly a pleasant experience.”
2. Keeping in mind these observations of the Hon'ble Supreme Court, let us examine whether revision petitioner/accused no.4 Sumeet Bachewar in Criminal Revision Application No. 383 of 2016 and revision petitioner/accused no.5 Mohit @ Altaf Aftab Khan in Criminal Revision Application No. 377 of 2016 can successfully assail the impugned common order dated 15th June 2016 passed by the learned Additional Sessions Judge 2, Thane, thereby rejecting their applications for discharge at Exhibit 161 and Exhibit 174 in Sessions Case No. 281 of 2013.
3. Revision petitioners are arraigned as accused in Crime No. 67 of 2013 registered at Vashi Police Station, District Thane, at the instance of First Informant Surjeet Surjansingh Kalra, Manager, S.K. Builders and Developers, Vashi, on 16th February 2013. Subsequently, the investigation in this crime came to be transferred to the Crime Branch, Mumbai. Ultimately, on completion of investigation, in all 14 accused persons are made to stand for the trial of offences punishable under Sections 302, 120B, 201 read with Section 34 of the IPC as well as under Section 3/25, 3/27 and 4/27 of the Indian Arms Act vide Sessions Case No. 281 of 2013, registered in pursuant to the charge-sheet filed on completion of investigation by the police.
To understand the prosecution case in better manner, it will be advantageous to name accused persons who are sought to stand the trial by the prosecution in the Sessions Case No. 281 of 2013. They are -
Accused No. 1 Venkatesh @ Kumar Ramu Chettiyar
Accused No. 2 Emanuel Samuel Amolik
Accused No. 3 Wajeed @ Zaheer Nambi Ahmed Qureshi
Accused No. 4 Sumeet Ganpatrao Bachewar
Accused No. 5 Mohit @ Altaf Aftab Khan
Accused No. 6 Mohd. Anis Nasir Ansari @ Bhaijan
Accused No. 7 Francis Devraj Chauri @ Rajiv
Accused No. 8 Kailash Balaji Gumane
Accused No. 9 Bhupesh Gupta
Accused No. 10 Suresh @ Jawahar Chelaram Bijlani
Accused No. 11 Arif Gulam Dastgir Shaikh
Accused No. 12 Anurag Shivmohan Garg
Accused No. 13 Mahesh Chelaram Bijlani
Accused No. 14 Anil D'souza
According to the prosecution case, an accused named Ashok is still absconding.
4. Heard. Rule. Heard finally with consent of parties in the wake of interim stay to the trial granted in Revision Application No. 383 of 2016 on 2nd September 2016 which is being continued from time to time.
5. Facts projected from the police report leading to prosecution of in all 14 accused persons except one absconding accused named Ashok can be summarised thus:-
(a) Sunil Kumar Lahoria (since deceased) was the proprietor of M/s. S.K. Builders and Developers having its office at Plot No. 16, Sector No.28, Vashi, Navi Mumbai. First Informant Surjeet Singh Kalra was in employment of deceased Sunil Kumar Lahoria as Manager. Prosecution witness Ganpat Chawda and Satyendra Pandey were in employment of the firm of deceased Sunil Kumar Lahoria as office boys. Prosecution witness Kokila Yadav was in the employment of the firm of the deceased as maid servant.
(b) On 16th February 2013, in morning hours i.e. at about 8.00 a.m., employees of S.K. Builders and Developers opened the office and started their work. Office boy Ganpat Chawda was cleaning the cabin of Sunil Kumar Lahoria. In the C.C.T.V. at the cabin, Ganpat Chawda saw a pers
