IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.244 OF 2000 CRIMINAL REVISION APPLICATION NO.244 OF 2000 CRIMINAL REVISION APPLICATION NO.244 OF 2000 Kumar Uttamchand Ailani ..Applicant versus The State of Maharashtra ..Respondent Mr.S.R.Chitnis, Sr. Counsel with Mr. M.S.Mohite for the Applicant Ms. Shinde for the Respondent State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 24th April, 2008. DATED : 24th April, 2008. DATED : 24th April, 2008. ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. 1. The applicant is facing Sessions trial IN Sessions Cases Nos. 233 of 1996 and 279 of 1996 before the 3rd Addl. Sessions Judge, Thane, hereinafter referred to as the learned Trial Judge. The applicant is facing charge under Section 302 of the IPC r/w. Section 120-B of the I.P.C. After the initial formalities were over and the applicant was brought before the Court as accused. the applicant filed application for discharge being application at Exhibit 109. It is required to be mentioned that this application at Exhibit 109 came to be filed after formal charge for Section 302 of -2- IPC was framed. There is some discussion as to whether such application can be entertained or not. However, at the end the learned trial Judge has dismissed the said application at Exhibit 109 and has also ordered that the charge would be altered. By Order dated 17.6.2000 the learned Trial Judge dismissed the application for discharge filed by the applicant and that is how the applicant has filed this revision application. 2. Few facts necessary for the disposal of this revision are as under: . On 8th April, 1989 at about 8.30 p.m. at Ulhasnagar, one Dunichand Kalani, hereafter referred to as the said deceased was murdered and complaint in respect of this incident was filed by one Mr. Narayan Kalani. The said complaint was registered and investigation was taken up and the present applicant came to be arrested in connection with the said complaint. The applicant filed discharge application as aforesaid at Exhibit 109 and the same came to be dismissed as mentioned earlier. -3- 3. I have heard learned Sr. Counsel Mr. Chitnis in support of the application and Ms. Shinde on behalf of the State. In order to consider whether the impugned Order was properly passed or not, it would be in the first place necessary mention the allegations against the applicant and then evaluate the same and decide whether the applicant was entitled to have himself discharged from the said Sessions Case. 4. On record two statements are found, namely one statement of Mr.Girdhari Pabnani and other of Anilkumar Kapoor. In addition to this one panchamama at the instance of the co-accused Pandharinath is also on record. According to the learned trial Judge it had some connection with this case against the applicant. By that panchanama the said co-accused Pandharinath showed to the police the house of Gope Beharani, where according to the prosecution a meeting took place for the purpose of hatching conspiracy to kill the said deceased. 5. In the aforesaid circumstances, I now propose to discuss the text of statements of said -4- Girdhari as well as Anil Kumar. Said Girdhari is a person who went to the house of Gope Beharani in connection with certain work regarding furniture. He claims to have visited the house of Gob Beharani 25 to 30 days prior to rendering of the statement dated 20th April, 1989. The said statement further narrates that at the residence of Gope Beharani, certain persons including the present applicant were present and this Girdhari claims that he heard Gope Beharani saying that the said deceased was interfering and creating impediment in the election of Nagaradhaksha and that Gope Beharani is said to have said to others that _____________________________. After this sentence was uttered Gope Beharani is said to have noted the presence of Girdhari and is said to have questioned Gridhari and asked him as to why he had come to the house of Gope Beharani. Said Gope Beharani is said to have told Girdhari by asking him to come on some other day. In substance, this Girdhari is said to have overheard Gope Beharani uttering the words "__________________ ______________" in the presence of the various persons including the present applicant and according to this witness Girdhari, the word "______" are referable to the deceased. -5- 6. One Mr. Anil Kapoor is said to have reached the house of another person by name Ghanshyam Bhatija on 2nd April, 1989 at about 10.45 p.m. apparently for the purpose of seeking a job. As he reached the said place he observed that Ghanshyam Bhatija and certain other persons and the present applicant were present there and the said Ghanshyam in Sindhi Language uttered that there is lot of trouble from Dunichand Kalani and "___________________________". It is at this point of time said Ghanshyam noticed that Anilkumar is hearing the conversation and here again the said Ghanshyam asked Anilkumar to come afterwards. Third item in the nature of material is panchanama of pointing the place of Gope Beharani by co-accused Pandharinath as stated earlier. There is no dispute about the place of residence of Gope Beharani and the said panchanama really does not constitute material against the applicant. 7. The aforesaid two statements in which certain utterances are found i.e. (1)_______ ____________________ and (2)___________________________ became the subject -6- matter of the decision before the learned trial Judge and before this Court. When the discharge application came to be filed before the learned trial Judge, the learned trial Judge had to concede that on account of the decision of this Court in the case of Baburao Hari Pawar vs. State of Maharashtra reported in 1987 Cri. Law Journal page 584 that discharge application can be considered even after charge was framed the learned trial considered the discharge application at Exhibit 109 and decided it against the applicant. 8. Learned Senior Counsel Mr. Chitnis appearing on behalf of the applicant had taken me through the two statements, namely statement of Girdhari and statement of Anil Kumar as also the impugned judgment and submitted that these statements do not make out a case of conspiracy against the applicant. 9. Learned Senior Counsel Mr. Chitnis appearing on behalf of the applicant relied upon the judgment of the Supreme Court in the case of Union of India vs. Prafulla Kumar Samal & Union of India vs. Prafulla Kumar Samal & Union of India vs. Prafulla Kumar Samal & Another nother nother reported in (1979) 3 SCC page 4 reported in (1979) 3 SCC page 4 reported in (1979) 3 SCC page 4 and drew my -7- attention to paragraph 10 of the said judgment and submitted that the Supreme Court has by laying down four points noted the parameters within which the application for discharge under Section 227 of the Code of Criminal procedure can be considered and as to how the court is required to attend to such matters. Learned Senior Counsel Mr. Chitnis tried to draw distinction between the words "some suspicion" and the words "grave suspicion". Learned Senior Counsel Mr. Chitnis submitted that even if the two statement are read as it is, at the highest they may raise to some suspicion and not grave suspicion as is indicated by the Supreme Court and that is how the applicant is entitled for discharge. 10. Learned Senior Counsel Mr. Chitnis also relied upon the judgment in the case of State vs. State vs. State vs. Nalini and others reported in 1999 SCC 691 Nalini and others reported in 1999 SCC 691 Nalini and others reported in 1999 SCC 691 and drew my attention to paragraph 581 onwards to submit that in order to charge a person for conspiracy there must be positive material and in particular the prosecution will have to show that there was meeting of minds between the persons who are said to have entered into conspiracy. According to Mr. -8- Chitnis, in the facts and circumstances of the case placed before this Court through these two witnesses, this court should not come to the conclusion that there was meeting of mind between the persons who were alleged to be present at the time when the two witnesses went to the respective places and there is no question of the present applicant joining hands with the others in the matter of causing death of the deceased. Learned Senior Counsel Mr. Chitnis submitted that if the two statements are perused as it is, it can be observed that the present applicant was a silent spectator to what may have been uttered by Gope Behrani or Ghanshyam and by no stretch of imagination he could be considered as party to the said utterances. 11. Learned Senior Counsel Mr. Chitnis submitted that taking the words "_______________________" or "___________________" may be a loud expression of a person concerned who uttered respective sentences and the applicant cannot be saddled with the liability in so far as the utterances of the said Gope Beharani or Ghanshyam. Learned Senior Counsel Mr. Chitnis -9- drew my attention to para 17 of the impugned judgment and submitted that the learned trial Judge erred in arriving at the conclusion that the material coming before the court through these two witnessess constitute sufficient material against the applicant for the purpose of framing of charge and put the applicant to trial. According to learned Senior Counsel Mr. Chitnis, the material which was placed before the Court through these witnesses cannot constitute the material for the purpose of framing of charge against the applicant much less charge for conspiracy. Learned Senior Counsel Mr. Chitnis further submitted that except the presence of the applicant on the two occasions as is claimed by these two witnesses, there is no over act alleged against the applicant so as to say that the applicant has done something in excess of his physical presence at the meeting and barely hearing those utterance of Gope Beharani and Ghanshyam. Learned Senior Counsel Mr. Chitnis therefore submits that the view taken by the learned trial Judge is erroneous and the applicant is required to be discharged and to that extent the learned trial Judge has erred and that this Court should discharge the applicant. Learned Senior -10- Counsel Mr. Chitnis submitted that though the judgment in the case of Union of India vs. Prafulla Kumar Samal as well as the case of State vs. Nalini & Others, were cited before the learned trial Judge, the learned trial judge did not appreciate them in the proper perspective with reference to the facts of this case and thereby erred in rejecting the application for discharge. 12. Learned Advocate Ms. Shinde appearing on behalf of the State tried to justify the impugned Order on the basis of the two statements mentioned aforesaid and submitted that the view taken by the learned trial Judge was right in as much as the learned trial Judge has considered the two statements as also the judgments cited before him and the learned trial Judge has come to the conclusion that the application for discharge was required to be rejected. She submitted that now that the charge is already framed, there is no question of the applicant seeking discharge particularly in the light of the two statements and therefore the application is required to be dismissed. -11- 13. After having considered the rival submissions, the judgments cited across the bar and the statements which are discussed above, I am inclined to accept the arguments advanced on behalf of the applicant and I am inclined to grant the application for discharge at Exhibit 109 for the reasons to follow. 14. To decide the discharge application one will have to appreciate those two statements at their face value. In the first place it will have to be noted that witness Girdhari happen to be a chance witness and he alleges that Gope Beharani made some utterances which according to the prosecution indicate that the conspiracy was hatched. If one peruses the said statement, the said utterances could be attributed to Gope Beharani and not to the applicant. The applicant was present at the residence of Gope Beharani and there is nothing to suggest that the applicant consented for the idea which was mooted out by Gope Beharani and therefore the argument advanced by the learned Senior Counsel Mr. Chitnis for the applicant that the applicant was a silent spectator will have to be accepted. Same is the position as -12- regards the utterances by Ghanshyam. The main ingredient of charge of conspiracy namely meeting of minds between the two persons who are alleged to have conspired to cause death of Dunichand Kalani is absent in the present case. By no stretch of imagination it can be said that the applicant shared the frame of mind of Gope Beharani or Ghanshyam. 15. Apart from these two statements there is no material placed before the Court to show that the applicant committed some overt act after these two meetings were over and therefore the role of the present applicant in the matter of alleged conspiracy will have to be treated as nil i.e. to say it cannot be held that the applicant had participated in hatching the conspiracy to cause death of said deceased. 16. After considering the entire record as also the impugned judgment I am inclined to observe that the learned trial Judge failed to consider the effect of the observations of the Honourable Supreme Court in the case of Union of India vs. Prafulla Kumar Samal, and State vs. Nalini. It is -13- seen that the learned trial judge, even after discussing these two judgments came to the conclusion that the material placed before him in the nature of these two statements was sufficient. As to how the said material was sufficient is not discussed by the learned trial judge. The learned trial judge has not elaborately discussed as to in what way the applicant is said to have participated in the alleged conspiracy apart from his physical presence at the house of Gope Beharani or Ghanshyam. The prosecution has not been able to place before the Court any material to show that the applicant and other persons met at the house of Gope Beharani as well as Ghanshyam with specific intention to discuss about the future of the deceased and planned to deal with the said deceased. To my mind, the utterances of Gope Beharani and Ghanshyam will have to be taken as something being casually said by Gope Beharani and Ghanshyam. The two witnesses do not narrate as to what discussion was going on prior to the impugned utterances and therefore the utterances of Gope Bahrani and Ghanshyam cannot be used against the applicant to hold that he had conspired to kill the deceased. It is required to be noted that the -14- impugned utterances by themselves would not go to show that Gope Behrani and Ghanshyam suggested to the persons present in the said meetings that a plot should be hatched to kill the deceased. The material placed before the Court does not give rise to suspicion much less some suspicion to come to conclusion that conspiracy was hatched to kill the deceased. In the substance, the material placed before the Court will have to be treated as insufficient for the purpose of holding that the prosecution has made out a prima facie case that the applicant was a party to the conspiracy which is alleged to have been hatched to cause death of the said deceased. In view of these observations, the application for discharge will have to be granted. For the reasons mentioned aforesaid, I pass the following order: ORDER ORDER ORDER i) Rule is made absolute. ii) The order dated 17th June 2000, passed by the Learned IIIrd Addl. Sessions Judge, Thane, thereby rejecting the discharge application filed by the applicant vide application Exhibit 109 is -15- set aside. iii) The discharge application filed by the applicant vide Exhibit 109 is granted. Accordingly, the applicant stands discharged from Sessions Case No. 233 of 1996 and 279 of 1990 presently pending in the Court of IIIrd Addl. Sessions Judge, Thane. iv) Bail bond of the applicant stands cancelled. (R.Y.Ganoo, (R.Y.Ganoo, (R.Y.Ganoo, J.) J.) J.)