1 REVN.65-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.65 OF 2011 Mr.Shashikant R. Kulkarni, ) Pathik Society, A-301, Thakur ) Complex, Kandivali. ) .. Applicant. Versus 1. The State of Maharashtra, ) 2. Central Bureau of Investigation ) Through Superintendent of Police, ) CBI, CGO Complex, 8 th Complex, ) CBD Belapur, Navi Mumbai. ) .. Respondents. .... Mr.Harshad Ponda, Senior Advocate a/w. Abad H. Ponda, Dinesh Tiwari, Amit Karwa & Ms.Sabiha Mukadam, Advocates i/b. Dinesh Tiwari & Associates for the Applicant. Mr.S.K. Shinde, Advocate for Respondent No.2 – C.B.I. Mrs.S.D. Shinde, A.P.P. for Respondent No.1 – State. .... CORAM : A. R. JOSHI, J. DATED : 24th MARCH, 2011. JUDGMENT : 1. By the present Revision Application, applicant/orig.accused No.9 in C.R. No.I-220/2006 registered with Kalamboli police station, Navi Mumbai prayed for setting aside the order dated 6th December, 2010 passed by the Sessions Judge, Alibaug. The said order was passed in Sessions Case No.27/2010 which arise out of 2 REVN.65-11 investigation in C.R. No.I-220/2006 registered with Kalamboli police station for the offences punishable under Section 302 r/w. 34 and Sections 325 & 27 of the Arms Act. However, so far as the present applicant is concerned, apparently the charge against him is that of criminal conspiracy for the offence punishable under Section 320 r/w. 120-B of Indian Penal Code. 2. As mentioned above, the order dated 6 th December, 2010 passed in Sessions Case No.27/2010 rejecting the application for discharge of present applicant/accused No.9 is challenged in the present matter. It is prayed that the present applicant be discharged from the said Sessions Case No.27/2010 pending on the file of the Sessions Court, Alibaug. 3. Prior to adverting to the rival arguments which were heard at length on previous dates, certain factual position is required to be mentioned in order to ascertain the scope of the present application for setting aside the order of rejecting discharge application of the present applicant/accused No.9. 4. Without going into all details as to the sequence of events happened, suffice it to mention that C.R. No.I-220/2006 arose out 3 REVN.65-11 of the offence of murders of one Mr.Pavanraje Nimbalkar and his driver. The crime was committed on 3 rd June, 2006 at Kalamboli. The dead bodies of Pavanraje Nimbalkar and his driver were found in the Skoda Car in which deceased Pavanraje Nimbalkar was traveling. Immediately both the said persons who were apparently shot by some firearms were removed to the Rural Hospital, Panvel by the Police. On examination, the attending Doctor declared them as dead. On the basis of driving licence found on the person of the driver and pan-card found with the passenger of the Car i.e. Pavanraje Nimbalkar, the identities were established. First Information Report was lodged by A.P.I. On the same day in the evening with Kalamboli police station. Offence was registered at C.R. No.I-220/2006 for the offence punishable under Section 302 r/w 120-B and Sections 25 & 27 r/w. 3 of the Arms Act. 5. Initially there was no progress by Kalamboli police station. Smt.Anandibai, wife of deceased Pavanraje Nimbalkar filed Writ Petition No.81/2008 before this Court. Allegations were made against accused No.1 Padamsinh Patil (the then ex-Home Minister of State of Maharashtra) and his son Jagjitsinh Patil (the then State 4 REVN.65-11 Minister) regarding pressurizing the police machinery. Request was made vide said Writ Petition to hand over the investigation to an independent agency. Vide order dated 23 rd October, 2008 investigation was handed over to the Central Bureau of Investigation (CBI). On the day of the order itself, it was so handed over to CBI. 6. During investigation, CBI Officers arrested accused No.4 one Parasmal Jain, sometime in the month of February, 2009 in connection with another offence. During his interrogation and during the course of the investigation, names of other co-accused i.e. accused No.1 – Padamsinh Patil, accused No.2 – Satish Mandade, accused No.3 – Mohan Shukla, accused No.5 – Dinesh Tiwari, accused No.6 – Pintu Singh, accused No.7 – Kailash Yadav, and accused No.8 – Chhote Pande were revealed as allegedly they hatched the conspiracy to do away with Pavanraje Nimbalkar. During investigation, it was further transpired that during the course of eliminating Pavanraje Nimbalkar, murder of his driver Samad Abdul was also committed, in order to leave no trace of commission of offence. In C.R. No.220/2006 of Kalamboli police 5 REVN.65-11 station, said accused No.4 Parasmal Jain was arrested on 25 th May, 2009. 7. During the investigation by CBI, two confessions were recorded, both under Section 164 of Cr.P.C. Before the Judicial Officer. First confessional statement was recorded on 29 th May 2009, immediately within four days of the arrest of Parasmal Jain. Investigation was then in progress at the hands of CBI. Second confessional statement was recorded on 18 th August, 2009 when chargesheet was filed. 8. According to prosecution, above mentioned two confessional statements are incriminating against accused No.4 Parasmal Jain (maker of the statements) and also against co-accused i.e. present applicant/accused No.9 inasmuch as certain role is attributed to the present applicant/accused No.9 that accused No.4 received the amount of Rs.1,50,000/- and Rs.2,50,000/- on two different occasions from the present applicant/accused No.9, relative of accused No.2 – Satish Mandade. This revelation was from the statement of accused No.4 recorded on 29 th May, 2009. So far as another confessional statement dated 18 th August, 2009 is 6 REVN.65-11 concerned, according to said accused No.4 he received Rs.1,50,000/- from the applicant/accused No.9 (relative of accused No.2). Apparently, in this statement, there is no mention of receipt of Rs.2,50,000/- by accused No.4 from applicant/accused No.9. 9. Infact, initial statement of accused No.4 Parasmal Jain dated 29 th May, 2009 is the initial clue to CBI to proceed further in the matter and but for such statement there was no any progress in the matter of double murder involving a political figure by name Pavanraje Nimbalkar. Without going into the minute details of the said entire statement of accused No.4, suffice it to say that all the details and various actions taken and meetings held by accused No.4 with accused No.2 – Satish Mandade and others are detailed in the said statement and accused No.2 agreed to pay Rs.25 lacs to Rs.30 lacs to accused No.4 for procuring the weapons, hirelings and to do the job of murder of Pavanraje Nimbalkar. As mentioned above, in the said statement it is specifically averred by accused No.4 that on two different occasions, amount of Rs.1,50,000/- & Rs.2,50,000/- were given to him at the hands of present applicant/ accused No.9, a relative of accused No.2. The relation between 7 REVN.65-11 accused No.2 and applicant/accused No.9 is rather admitted position inasmuch as wives of both these accused are real sisters. 10. The application for discharge on behalf of the present applicant/accused No.9 was preferred before the Sessions Court in view of provisions of Section 227 of Cr.P.C. and various grounds were raised. Infact, some grounds are reiterated during the arguments in thepresent matter while challenging the said order of Sessions Court rejecting the discharge application. Said grounds are : i. Except the so called confessional statements of accused No.4 recorded under Section 164 of Cr.P.C. there is no material to indicate complicity of applicant/accused No.9. ii. There is no evidence that the alleged payment of Rs.1,50,000/- & Rs.2,50,000/- made to accused No.4 by applicant/accused No.9, with the understanding to applicant/accused No.9 that the said amounts were going to be utilized for commission of an offence. iii. Both the alleged confessions are inconsistent with each other 8 REVN.65-11 inasmuch as in the second statement dated 18 th August, 2009, there is no mention regarding amount of Rs.2,50,000/-. iv. The material as available with the investigating agency do not raise grave suspicion and as such is not sufficient even to frame the charge. 11. In support of the arguments, shelter of ratios propounded by various authorities, was taken on behalf of applicant/accused No.9. Said authorities are as under :- [i] 1964 (2) Cri.L.J. 344 (Vol.69, C.N.105) [Haricharan Kurmi & Ors. Vs. State of Bihar]; [ii] 1985(2) Bom CR 499 [Gopal Govind Chogale Vs. Assistant Collector of Central Excise and Anr.]; [iii] 1988(1) Bom CR 428 [Paru Mrugesh Jaikrishna Vs. Asst.Collector of Customs]; [iv] AIR 1998 SC 3258 [Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra]. 12. The first authority I.e. Haricharan Kurmi Vs. State of Bihar (supra) deals with probative value of the confession of the co- accused. Rather, distinction has been made in the said authority by 9 REVN.65-11 the Hon'ble Apex Court so as to Section 30 & Section 3 of the Evidence Act. Detailed explanation is given as to how the confessional statement can be used against the co-accused. Certain observations in the said authority can be reproduced with advantage : “(11a) ............ Even so, S.30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by S. 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non- technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because S. 30 merely enables the Court to take the confession into account. (12) As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the 10 REVN.65-11 proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. ............” 13. During the arguments, when the above proposition of law was brought to the notice of the learned Counsel for CBI, he submitted that the said observations are on the matter which was already disposed of and was before the Hon'ble Apex Court at the stage of Appeal. Again on this aspect, it is pointed out on behalf of CBI that what is to be construed at the time of framing of charge is contemplated by Sections 226, 227 and 228 of Cr.P.C. Section 227 Cr.P.C. reads thus : “227. Discharge.-- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 14. It is apparent that upon consideration of the record of the case and the documents submitted therewith and after hearing 11 REVN.65-11 submissions etc. if there are sufficient grounds to proceed against the accused for any particular offence, then, the Sessions Court may frame a charge against the accused if the matter is exclusively triable by the Court of Sessions. As argued, by pointing out the above provisions of law here what is contemplated is consideration of the record and documents produced before the Court, of course, with a judicious mind and to shift and weigh the said material prima facie without indulging in thread-bear analysis of the said material whether sufficient for holding the accused guilty. In the opinion of this Court, there is rather a thin line for appreciation of such material produced by the prosecution along with the documents, whether it will amount to a reasonable suspicion holding the accused responsible for the offence at least for framing of the charge, and whether such material is sufficient enough to hold him guilty at the end of the trial. Again in the opinion of this Court the pros and cons of the material available against the particular accused so as to establishing his guilt ultimately on the conclusion of the trial, is not contemplated. 15. The other Authorities cited at Sr.Nos. (ii), (iii) & (iv) 12 REVN.65-11 above indicate that no charge can be framed against the accused only on the basis of a confessional statement of co-accused, inasmuch as the statement of the co-accused is not an evidence in the strict sense of Section 3 of the Evidence Act. This Court has given careful consideration to the ratios propounded by the said Authorities at Sr.Nos. (ii), (iii) & (iv) above. No doubt, as per the pronouncement of the Hon'ble Apex Court in the matter of Haricharan Kurmi Vs. State of Bihar (supra), the Court must consider other evidence against the accused person and if such evidence is appearing satisfactory then the Court can again turn back to the confessional statement of the co-accused and come to the conclusion as to the guilt of the accused. Bearing in mind these observations which were made in the matter at appellate stage before the Hon'ble Apex Court, still in the present matter it is ascertained, as is vehemently submitted on behalf of the CBI, that apart from the confessional statement of co-accused No.4, there is other material by way of statement of one witness Shri Bharat Dekale who happened to be working as a driver of accused No.2 Satish Mandade during the relevant time of the offence. Prima facie said statement of Bharat Dekale recorded by CBI on 23 rd June, 2009 13 REVN.65-11 corroborate the version of accused No.4 as mentioned in his confessional statement as to going to the house of the present applicant/accused No.9 at Kandivali when accused No.2 had taken some plastic bag containing some packet from the house of accused No.1 and gave it to another co-accused Mohan Shukla and thereafter visit was made to the house of applicant/accused No.9 at Kandivali. It is also brought to the notice of this Court that apart from the said statement of the driver, there is another material by way of photograph of present applicant/accused No.9 in company with accused No.2 Satish Mandade and also accused No.3. By pointing out this, it is argued on behalf of CBI that whatever the evidential value of the statement of Bharat Dekale and of the photographs, that is to be ascertained at the time of trial and prima facie this material is required to be taken in juxtaposition of the confessional statements of co-accused No.4 to prima facie come to the conclusion as to involvement of the present applicant/accused No.9 in the conspiracy to commit murder of Pavanraje Nimbalkar. 16. While placing much emphasis on the material available with the investigating agency as against present applicant/accused 14 REVN.65-11 No.9 ratios of the following authorities was taken shelter of on behalf of the CBI. Said authorities are : [i] (1990) 4 Supreme Court Cases 76 Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya and others. [ii] (2008) 10 Supreme Court Cases 394 Yogesh alias Sachin Jagdish Joshi Vs. State of Maharashtra 17. Scope of Section 227 of Cr.P.C. has already been discussed above and as such in the opinion of this Court apart from the confessional statements of co-accused No.4, there is a material by way of photographs and the statement of one Mr.Bharat V. Dekale in order to prima facie consider the involvement of the present applicant/accused No.9 in the conspiracy to commit murder of Pavanraje Nimbalkar. Needless to mention that when the case against any particular accused is based on circumstantial evidence and as to his involvement in the conspiracy, hardly there could be any direct evidence; and whatever material available before the investigating agency is required to be construed only at the time of the trial. In other words, if considering the overall circumstances and the effect of material available with the investigating agency 15 REVN.65-11 concerning all the accused persons and including applicant/accused No.9 in the present case, it would not be in the fitness of the situation to give a clean chit to present applicant/accused No.9 without he being put up for trial for the offence of murder and involvement in conspiracy. 18. In that view of the matter, it is not a fit case in which the present applicant can be discharged from Sessions Case No.27/2010 and there is nothing to interfere with the impugned order dated 6 th December, 2010 passed by the Sessions Judge, Alibaug rejecting the application for discharge. Hence, present criminal revision application is disposed of with following order : :: O R D E R :: [i] Criminal Revision Application No.65 of 2011 stands dismissed. . At this stage, oral request was made for staying the operation of this order. However, considering the circumstances, the same is not accepted. (A. R. JOSHI, J.) PPD