IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
M.S. SONAK, PRITHVIRAJ K. CHAVAN, JJ.
RAVINDRA JHA - Appellant
Vs.
STATE, GOA - Respondent
Criminal Appeal No. 2, 16 of 2017, 72 of 2016, 1 of 2019
Decided on : 08-02-2019
Criminal Procedure Code, 1973 - Section 374, 164 and 281 - Constitution of India,1950 - Article 21 - Indian Penal Code, 1860 - Impugned Judgment - Criminal conspiracy - Enduring integrity – Appeal against conviction - In all these appeals instituted under Section 374 of Code of Criminal Procedure 1974 (Cr-P-C-) appellants challenge common Judgment and Order in Sessions Case made by learned Sessions Judge at convicting Appellants for offences punishable under Sections 365 302 394 and 201 of Indian Penal Code read with Section 120-B of Indian Penal Code (IPC) and sentencing them inter alia to undergo Life Imprisonment - operative portion of impugned Judgment and Order - Conviction recorded by learned Sessions Judge warrants interference - Each of learned Counsel took us through evidence on record and contended that such evidence has not at all been appreciated by learned Sessions Judge in proper legal perspective - They submitted that this is a case where mandatory provisions of Sections 164 and 281 of Cr-P-C- were never complied with and this aspect has missed learned Sessions Judge - They submitted that there are inherent contradictions in theories propounded by Prosecution and this was certainly not a case to convict accused persons- For all these reasons they urge that these appeals be allowed and convictions be set aside – Held, Perusal of actual examination we find that there is some minor discrepancy as regards precise date on which confession came to be recorded - In order to record confession was brought before Special Executive Magistrate and on this date Special Executive Magistrate has stated that she gave hours to retract or whether or not to make a confession - However actual confession is stated to have been recorded - Record however indicates that even actual confession was recorded itself- However some leeway can be granted to Prosecution as it is possible that this was an inadvertent error - Court must ensure that miscarriage of justice is avoided and if facts and circumstances of a case so demand then benefit of doubt must be given to accused keeping in mind that a reasonable doubt is not an imaginary trivial or a merely probable doubt but a fair doubt that is based upon reason and common sense - Appellants discharged
M.S. SONAK, J.
1. In all these appeals instituted under Section 374 of the Code of Criminal Procedure, 1974 (Cr.P.C.), the appellants challenge the common Judgment and Order in Sessions Case No.50/2009 made by the learned Sessions Judge, North Goa, at Panaji, convicting the Appellants for the offences punishable under Sections 365, 302, 394 and 201 of the Indian Penal Code, read with Section 120-B of the Indian Penal Code (IPC) and sentencing them, inter alia, to undergo Life Imprisonment. The operative portion of the impugned Judgment and Order reads as follows :
“Accused No.1, 2, 3 and 4 who are found guilty for committing the offence under Section 365 r/w. 120-B of IPC of criminal conspiracy and in furtherance of it abducting deceased Sudan Dabhale and wrongfully confining him are hereby sentenced to suffer imprisonment for a term of 7 years respectively/individually and to pay fine of Rs. 10,000/- each and in default to undergo 6 months Simple Imprisonment.
Similarly, accused no.1, 2, 3 and 4 who are found guilty for the offence of murder of Sudan Dabhale under Section 302 r/2. 120-B of IPC, under the criminal conspiracy, are hereby sentenced to suffer imprisonment for life respectively/individually and to pay fine of Rs. 10,000/- each and in default to undergo 6 months Simple Imprisonment.
Accused no.2 and 3 who are already undergoing sentence of life imprisonment in another matter have to undergo the said imprisonment for life in its strict sense.
Accused no.1, 2, 3 and 4 who are found guilty for the offence under Section 394 r/w. 120-B of IPC for committing robbery and causing hurt are hereby sentenced to suffer imprisonment for life respectively/individually and to pay a fine of Rs. 10,000/- each and in default to undergo 6 months Simple Imprisonment.
Accused no.1, 2, 3 and 4 who are found guilty for the offence under Section 397 r/w. 120-B of IPC for committing robbery using deadly weapons and causing death/injuries to the person are hereby sentenced to suffer imprisonment for 7 years respectively/individually and to pay a fine of Rs. 10,000/- each and in default to undergo 6 months Simple Imprisonment.
Accused no.1, 2, 3 and 4 who are found guilty for the offence under Section 201 of IPC for causing disappearance of evidence are hereby sentenced to suffer imprisonment for 7 years respectively/individually and to pay a fine of Rs.10,000/- each and in default to undergo 6 months Simple Imprisonment.
All the accused who are in custody are entitled to setoff under Section 428 of CR.P.C. for the sentence already undergone.
All the sentences shall run concurrently.
If the fine amount is paid by the accused persons, the same shall be paid to the widow of the deceased Sudan Dabhale (PW.1) by way of compensation.”
2. Criminal Appeal No.2/2017 has been instituted by Ravi Jha (A.1); Criminal Appeal No.16/2017 is instituted by Srinivas Gauramkondu (A.2); Criminal Appeal no.72/2016 is instituted by Mohammad Ali (A.3) and Criminal Appeal No.1/2019 is instituted by Bijoy Kolita (A.4) in order to question the aforesaid common judgment and order. The learned Counsel for the parties agree that it is only appropriate that all these appeals are considered together and disposed of by a common Judgment and Order.
3. The case of the prosecution, as alleged in the Chargesheet, is that all the accused persons hatched a criminal conspiracy and in furtherance of the same, hired a Maruti Van of the deceased Sudan Dabhale (Sudan) from Mapusa Bus Stand on 17 July 2009, bearing registration No.GA-01-R-7954 under the pretext of transporting household goods/articles from Birlanagar to Mapusa and thereafter took the said Sudan, along with his Maruti Van to Cuelim, Cansaulim at an isolated spot to commit his murder, robbed his articles, together with the Maruti Van itself and then dumped said Sudan's dead body at an isolated spot in Cuelim, Cansaulim. It is also the case of the Prosecution that thereafter, the accused persons used the said Maruti Van fo
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