THE STATE OF MAHARASHTRA

RITESH, S/O VASUDEO WANJARI

MARCH 15, 2001

[KT THOMAS, AND RP. SETHI, JJ.]

Code of Criminal Proceduff, 1973-Section 439-Bail-Re.ipondent 'l\' criminally conspi1d and allegedly m111rle1ed his beloved-Trial Cou11 refused to grunt bail as it.found his complicity in the conspiracy-High Cow1 granted C bail 1vithou! giving the p1vsecution an uppo11unity to lead evidence-On appeal Held, High Cow1 not justifie(I in finding at the initial stage that allegation of conspiracy 1vas not <!stablished, parlicular/y 1vhen rhe respondent had gone to the place rf occurrence-Respondent should have got a verdict o,{ his innocence or involvenzrnf in the o_f!Pnce f1vm the cou111vhen the final

charge-sheet H'OS filed as no exceplional g1nunds \Vere made ou1 to depa1t fmm the established pmcedure-01rler of High Corm set aside-Pnwl Code,

i860-Secticms302, 109, 364, 397, 20l 1wdwith34-ScheduledCastesand Scheduled Tribes (Prevention of Atmcities) Act-Section 3( I )(xi).

Respondent had alkgedly conspired along with some other persons to murder his beloved, who belonged to a Scheduled Caste. The task of murdering the decea, ed was accomplished after two unsuccessful attempl,.

Respondent filed a hail application after he was arrested for the offences under Sections 302, 109, 364, 397, 201 read "ith Section 34 I.P.C. and Section 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Trial Court found his complicity in the criminal conspiracy established and refused hail. High Court allowed the Revision Petition under Section 439 Cr.P.C. and granted bail finding that the allegation of conspiracy was not established. Hence this appeal.

Allowing the appeal, the Court

HELD : 1. Despite observing that the case was based on circumstantial evidence, the High Court did not afford the prosecution an opportunity to lead evidence for establishing the existence of conspiracy and wrongly held that it was difficult to infer the existence of a conspiracy particularly when the respondent had gone to the place of the occurrence.

The factum that he went there was relied upon hy the prosecution as one of 438

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the circumstances connecting the accused with the commission of the crime particularly when it was alleged that from there he used to have telephonic talks with the other accused persons about the alleged conspiracy. In the absence of "exact talks'', the High Court was not ju•1ified in finding at the initial stage that the allegation of conspiracy was not established. [ 440-G-H]

2. Once the final charge-sheet has been filed in the trial court, the High Court, under the normal circumstances, should have permitted the respondent to get a verdict of his innocence or involvement from that Court. No exceptional ground was made out to depart from a usual established procedure. [441-B]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 297 of 2001.

From the Judgment and Order dated 2.8.2000 of the Bombay High Court in Cr!. Application No. 926 of 2000.

S.S. Shinde and S. V. Deshpande for the Appellant.

M.R. Daga, P.S. Sontakke and T.S. Arora for the Respondent.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

The respondent was anested in connection with Crime No.129/99 registered by the Police Station, Goregaon for the offences punishable under

Sections 302, 109, 120B, 364, 397, 201 read with Section 34 of the Indian Penal Code and under Section 3(i)(xi) of the Scheduled Caste and Scheduied Tribes (Prevention of Atrocities) Act. He has been granted bail pending trial vide the order impugned in this appeal on the ground that there was no material on record to establish the involvement of the respondent in the commission of the crime and that the accused was not aware of the criminal conspiracy, in execution of which, the deceased Shubhangi was killed.

According to the prosecution, the respondent had a love affair with the deceased Shubhangi. The deceased was insisting for marriage to which the respondent and his mother were not agreeable as the deceased belonged to

Scheduled Caste and the respondent belonged to Teli community which is considered as higher caste. The respondent is alleged to have hatched a

SUPREME COURT REPORTS

(2001] 2 S.C.R.

A conspiracy to get rid of Shubhangi by eliminating her. In furtherance of the conspiracy and to create evidence in his favour, the respondent went to Barmnati on 25th November. 1999. On 11.12.1999 one Ms.Vanita contacted

the deceased; who was working at Nagpur, and took her to market on the pretext of making preparations for marriage of the deceased with the respondent. In the evening, the other accused, namely, Ashish, Dinesh and Ajay came in a Marnti Car and picked up the deceased along with Ms. Vanita and took her to Ramtek. A contract killer is alleged to have been hired by the accused to murder the deceased. As the alleged contract killer did not reach on that day, the. criminal conspiracy hatched by the accused could not be implemented. Again on 13.12.1999 accused Ms.Vanita took the deceased on the C pretext of solemnising her marriage with the respondent. To the misfortune of the accused, the killing was not accomplished even on that day as their car had met with an accident in which Ms.Vanita, accused had sustained some injuri"S. The task of murdering the deceased was accomplished on 15.12.1999.

The deceased was inflicted injuries with knife and stone and was also D strangulated. In order to conceal the identity of the victim, the accused persons took away her purse, bag and other articles from the dead body and later on burnt the same.

After his arrest the respondent filed an application for bail in the trial court which was dismissed on 24.4.2000 on finding that his complicity in the E criminal conspiracy was established. Being aggrieved by the order of the trial court, the respondent filed a Revision Petition under Section 439 of the Code of Criminal Procedure in the High Court which was allowed vide the impugned order.

For releasing the respondent on bail, the High Court has ventured to F refer to the merits of the case and pre-maturily held that there was no material on record to show that the respondent was guilty of conspiracy, in execution of which, Shubh"ngi, once his beloved, was murdered. Despite observing that the case was based on circumstantial evidence, the High Court did not afford the prosecution an opportunity to lead evidence for estab1ishing the existence

G of conspiracy and wrongly held that it was difficult to infer the existence of a conspiracy particularly when the respondent had gone to Bararnati. The facturn of the respondent going to Bararnati was relied upon by the prosecution as one of the circumstances connecting the accused with the commission of the crime particularly when it was alleged that while at Bararnati he used to have telephonic talks with .the other accused persons about the alleged H conspiracy. In the absence of "exact talks", the High Court found that the -

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allegation of conspiracy was not established. The Single Judge of lhe High A " Court was not justified, at the initial stage, to observe:

" ... .it is difficult to say that after the conspiracy was batched lhe applicant had been to Baramati and from there he med to have talks with other accused on phone regarding the alleged conspiracy."

Once lhe final charge-sheet has been filed in lhe trial court, lhe High Court, under lhe nmmal circumstances, should have pcimitted the respondent to get a verdict of his innocence or involvement from that Court under Chapter XVIII of the Code of Criminal Procedure. No exceptional ground has been made out, in lhe instant case, to depart from such a usual established procedure. The order impugned being contrary to law is liable to be set aside.

Under lhe circumstances the appeal is allowed and lhe order impugned is set aside. The respondent would be at liberty to urge grounds, if there is

any, for his discharge before the trial court and the trial court shall not be influenced by any of lhe observations made by us in !his order while deciding D his plea of bail. We make it clear that no observation made by the High Court in the order impugned shal1 either be made a ground in favour of the accused for deciding such a plea.

A.Q.

Appeal allowed .