1 Cri.Appl.No.2801 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2801 OF 2009 1. Venkateshacharya Guru Laxmanacharya @ Venkateshacharya Dubey S/o. Dalsingar Dubey, Age-50 years, Occu - R/o.Totadri Math, Railway Road, Rhishikesh (Uttarakhand) 2. Pradip S/o.Dalsingar Dubey, Age-41 years, Occu-Business, R/o. As above. APPLICANTS VERSUS The State of Maharashtra RESPONDENT Mr.Shirish Gupte, learned Sr.counsel with Mr.B.R.Varma, learned counsel for the applicants. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 25/03/2011 ORAL JUDGMENT : 1. By the present application u/s. 482 of The Cr.P.C., the applicants have approached this Court for the reliefs in terms of prayer clause 12(A) to quash and set aside the charge sheet filed in Sessions Case No.171/2000, filed by the respondent before the 2 Cri.Appl.No.2801 of 2009 learned Chief Judicial Magistrate, Nanded and the proceedings of RCC No.1151/2000, registered on the basis of charge sheet no. 171/2000 in respect of the applicants. 2. Record shows that Rule was issued in this application by way of order dated 21/11/2009 with the directions that the application be listed for final hearing after the decision in Criminal Appeal No. 109/2002. The said criminal appeal no.109/2002 was disposed of by the Division Bench of this Court vide judgment and order dated 20/09/2010. 3. Heard learned senior counsel Shri.Gupte followed by the submissions of learned A.P.P. for State. 4. Such of the facts as are necessary for the decision in this application can be summarized as follows : On the basis of complaint of one Pravinsing Chavan, an offence came to be registered vide CR No.276/2000 in Bhagyanagar Police Station, Nanded about the incident dated 29/12/1999. The incident was in respect of murder of one Keshavacharya, who was Mathadhipati of Balaji Temple Trust, having the temples and Math properties at Jalna, Nanded and at Banglore. After completion of investigation, charge sheet came to be filed before learned J.M.F.C. Nanded, who committed the trial to the Court of sessions, Nanded At the time of filing of the charge sheet, present applicants were not 3 Cri.Appl.No.2801 of 2009 available, hence the charge sheet was filed against Kaushal @ Shailendra @ Ramdas Shukla and one Birbal @ Hari S/o.Ramprasad. On committal of the case to the Court of Sessions, it was numbered as Sessions Case No.6/2001, in which charge was framed against the present applicants for an offence punishable u/s. 120(B), 302, 201 of The IPC and u/s. 25 of The Indian Arms Act. In the charge of conspiracy, it was specifically framed against these 2 applicants alongwith absconded accused, who were shown as not available at the time of filing of the charge sheet. 5. It is urged across the bar that deceased Keshavacharya was successor of Guru Laxmanacharya, who was the Mathadhipati of the temple, having temples and other properties at Jalna, Nanded and Banglore. This property includes landed property. It is further urged that the said Guru Laxmanacharya has executed a Will in respect of those properties of the Math in favour of deceased Keshavacharya. In his lifetime, said Keshavacharya had called first applicant from Rishikesh, somewhere prior to year 1997. Somewhere in the year 1997, deceased Keshavacharya has declared the first applicant as his successor to the properties of the Math. It is also urged that somewhere in the year 1997, the first applicant has permanently left Nanded for Banglore and since then he has not returned to Nanded. It is further urged that some civil litigation was going on prior to the incident in question, which took place on 29/12/1999, which was pending in the Nanded District Court. It is further urged that the present applicant no.1 is permanently staying 4 Cri.Appl.No.2801 of 2009 at Rishikesh and travelling all over India for religious purpose and his whereabouts were known with the office bearers who are managing the administration of the said Math. Even then, no steps were taken either to trace him or to bring him from Rishikesh as he was shown as one of the absconded person, who was not available at the time of filing of the charge sheet. It is also urged that no steps were taken to secure his presence as provided under Chapter (VI) of The Cr.P.C. 6. It is further urged that on the basis of available record, Kaushal and Birpalsing were tried before the Court of Sessions and were convicted for the charges lavelled against them. Correctness of the said conviction and sentence was questioned before the Division Bench of this Court by way of criminal appeal, which was numbered as criminal appeal no.109/2002. During the course of submissions across the bar, learned counsel appearing for the applicants and learned A.P.P. appearing for the respondent have taken me through the text of the judgment of the Division Bench dated 20/09/2010 in Criminal Appeal No.109/2002. Perusal of the judgment of the Division Bench clearly establish that the evidence of P.W.No.1 Pravinsing Chavan, the alleged eye witness to the incident dated 29/12/1999, the Division Bench has come to the conclusion that his evidence is not trustworthy, and can not be relied upon. In this application, it is not necessary to discuss that evidence again. Suffice it to state that while allowing the criminal appeal, Division Bench has discarded the evidence of the sole eye witness complainant Pravinsing Chavan. So also in the judgment of the 5 Cri.Appl.No.2801 of 2009 Division Bench, Division Bench has also discarded the evidence about the identification of those 2 accused in the identification parade held by the Tahsildar. In the concluding paragraph, the Division Bench has also discarded the evidence in respect of charge of conspiracy. At the outset, it is necessary to quote the observations to that effect, which reads as : “There is no evidence whatsoever in respect of the offence punishable u/s. 120(B) of The Indian Penal Code. The prosecution had examined PW No.17 Ashok Kumar Dube and P.W.No.18 Premkumar Shukla in respect of the evidence relating to conspiracy. Both these witnesses did not support the prosecution and were declared hostile. Apart from the strained relations and longstanding court litigation between the deceased and the absconding accused, there is no other evidence connecting the appellants with the commission of the crime.” 7. In this respect, our attention is further drawn by the learned counsel appearing for the applicant towards the affidavit filed in this application of Vitthal Ganpatrao Bhingardeo, P.S.I. Bhagyanagar Police Station, Nanded. Our attention is drawn towards the contents of paragraph no.4 and 5 of the said affidavit in reply wherein in uncertain words, the deponent has stated that “It appears from the first information report that one Pravinsing Chavan had lodged report regarding murder of Keshavacharya. It is alleged that, assailants were of 25 years of age and suspected involvement of applicants. However, his oral evidence is recorded in trial and he has stated that, dispute was pending between applicants and deceased. At the same 6 Cri.Appl.No.2801 of 2009 time, it is admitted in cross examination that he never seen Venkatesy Shastriji and Pradeep Dubey (Present applicants.). It is stated that he do not know about the litigation between Venkatesh and deceased. Complainant has suspected involvement on the basis of say of others. He has further stated in para no.5 of his affidavit in reply that the age of the assailants does not match with applicants. Though some of the witnesses have stated in examination in chief regarding dispute between deceased Keshavcharya and applicant no.1 on account of Mahantship, but it is admitted by them that applicant no.1 had left Nanded before incident and relation between both were cordial. It is also stated that it is equally true that before recording of evidence in court some investigation could be made but by lapse of time and recording of evidence before learned Sessions Court this Hon’ble Court may assess the evidence and pass appropriate orders. 8. In the light of these facts stated in the affidavit in reply, it is urged that apart from the observations by the Division bench of this Court in Criminal Appeal No.109/2002, the facts stated in the affidavit in reply by the deponent also played very material role. According to learned counsel for applicants, that the facts stated in the affidavit in reply clearly indicate two things, first at the time of incident in question dated 29/12/1999, these applicants were not present in Nanded or at the place where the incident occurred. Second, from the evidence collected, the witnesses suspect about the involvement of these applicants in the said crime. 7 Cri.Appl.No.2801 of 2009 9. He has posed the question whether mere suspicion, which is not grave in nature, whether sufficient to frame the charge against these applicants and they have to face the trial. At this juncture, it is useful to give the reference in the matter of Yogesh @ Sachin Jagdish Joshi versus State of Maharashtra, 2008(2) Bom.C.R. (Cri.) 411, wherein it is observed by the Supreme Court that, “evidence produced before Judge gives rise to suspicion only as distinguished from grave suspicion, Judge will within his right to discharge accused. High Court opined circumstances, relied upon by prosecution, even if accepted entirety, only create suspicion of motive, which is not sufficient to bring home an offence of murder hence, State’s petition for Special Leave dismissed.” 10. Further, it is useful to give the reference of the observations in the said judgment. 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 oaccused 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, may bound to decide whether there is 8 Cri.Appl.No.2801 of 2009 “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 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)2, 1977 DGLS (Soft) 248 : 1977(4) S.C.C. 39 : A.I.R. 1977 S.C. 2018 and Prafulla Kumar Samal (supra). 9 Cri.Appl.No.2801 of 2009 In the light of these observations supra, it is necessary to advert to the evidence of material witnesses examined. Evidence of P.W.No.1, the complainant, alleged eye witness, as stated earlier is discarded by the Division Bench. It is nobody’s case that the applicants were present at the scene of offence, at the time of alleged incident. In such circumstance, actual participation of the applicants in the commission of the offence require to be rulled out. Now remain question of consideration about a illegal agreement about murder of Keshavacharya, where the conspiracy was hatched in an agreement with the arrested accused and the present applicants. No doubt, it is a universal truth that the conspiracy never hatched in broad day light, but to be inferred from the circumstances on record. These circumstances were brought on record during the trial of the convicted accused by examining prosecution witness no.16 Dilip Dharmadhikari and prosecution witness no.17 Ashokkumar Dubey. These witnesses have admittedly not supported the case of the prosecution. Apart from the evidence led during the trial, the evidence collected during the investigation, the statement of Investigation Officer in his affidavit in reply, in para no.4 and 5 clearly states that the evidence against the these applicants is mere suspicion. In the rullings referred supra, it is observed in para no.15 that, “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 distinguished from grave suspicion, he will be fully within his right to discharge the accused.” These observations are squarely applicable to the evidence collected by the Investigation 10 Cri.Appl.No.2801 of 2009 Officer during the investigation, so also the witnesses examined during the trial. In the circumstance, the only evidence against these applicants is the suspicion and nothing else. Per contra, learned A.P.P. appearing for the respondent/State tried to convince the Court that the points urged by the Senior Counsel appearing on behalf of the applicants are not sufficient to allow the application. For the reasons discussed and stated in the entire order, a case is made out to quash the proceedings as prayed in terms of prayer clause A, for want of sufficient material. In the result, application is allowed. 11. Rule made absolute in terms of prayer clause A of the application. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/MAR. 2011/cri.appl.2801-09