The State of Maharashtra Vs. Ritesh S/o Vasudeo Wanjari
EmailAppeal: Criminal Appeal No. 297 of 2001
(Arising out of SLP (Crl.) No.3852 of 2000)
(From the Judgment and Order dated 2.8.2000 of the Bombay High Court in Crl. Application No. 926 of 2000)
(Arising out of SLP (Crl.) No.3852 of 2000)
(From the Judgment and Order dated 2.8.2000 of the Bombay High Court in Crl. Application No. 926 of 2000)
Petitioner: The State of Maharashtra
Respondent: Ritesh S/o Vasudeo Wanjari
Apeal: Criminal Appeal No. 297 of 2001
(Arising out of SLP (Crl.) No.3852 of 2000)
(From the Judgment and Order dated 2.8.2000 of the Bombay High Court in Crl. Application No. 926 of 2000)
(Arising out of SLP (Crl.) No.3852 of 2000)
(From the Judgment and Order dated 2.8.2000 of the Bombay High Court in Crl. Application No. 926 of 2000)
Judges: K.T. THOMAS & R.P. SETHI, JJ.
Date of Judgment: Mar 15, 2001
Appearances:
Mr. S.S. Shinde and Mr.S.V.Despande, Advocates for the Appellant.
Mr. M.R.Daga, Mr. P.S.Sontakke and Mr. T.S.Arora, Advocates for the Respondent.
Head Note:
CRIMINAL LAW / PRACTICE AND PROCEDURE
Criminal Procedure Code, 1973
Sections 438/439 – Bail – Accusation of conspiracy and murder – High Court referring to merits of case and holding that no mate-rial was there to hold the accused guilty of conspiracy – No opportunity afforded to prosecution to establish conspiracy- Case based on circumstantial evidence. Held that High Court was wrong in its approach. Appeal by State allowed. (Paras 5,6)
JUDGEMENT:
SETHI, J.
1. Leave granted.
2. The respondent was arrested 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 Scheduled Tribes (Prevention of Atroci-ties) 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 Shubhan-gi was killed.
3. 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 agree-able as the deceased belonged to Scheduled Caste and the respond-ent belonged to Teli community which is considered as higher caste. The respondent is alleged to have hatched 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 Baramati 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 Maruti 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 conspira-cy hatched by the accused could not be implemented. Again on 13.12.1999 accused Ms.Vanita took the deceased on the 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 injuries. The task of murdering the deceased was accomplished on 15.12.1999. The deceased was inflicted injuries with knife and stone and was also 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.
4. 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 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 Crimi-nal Procedure in the High Court which was allowed vide the im-pugned order.
5. For releasing the respondent on bail, the High Court has ven-tured to refer to the merits of the case and prematurely held that there was no material on record to show that the respondent was guilty of conspiracy, in execution of which, Shubhangi, 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 establishing the existence of conspiracy and wrongly held that it was diffi-cult to infer the existence of a conspiracy particularly when the respondent had gone to Baramati. The factum of the respondent going to Baramati 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 Baramati he used to have telephonic talks with the other accused persons about the alleged conspiracy. In the absence of “exact talks”, the High Court found that the allegation of conspiracy was not established. The single Judge of the High Court was not justi-fied, at the initial stage, to observe:
“….it is difficult to say that after the conspiracy was hatched the applicant had been to Baramati and from there he used to have talks with other accused on phone regarding the alleged conspira-cy.”
6. 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 under Chapter XVIII of the Code of Criminal Procedure. No exceptional ground has been made out, in the instant case, to depart from such a usual established proce-dure. The order impugned being contrary to law is liable to be set aside.
7. Under the circumstances the appeal is allowed and the 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 the observations made by us in this order while deciding his plea of bail. We make it clear that no observation made by the High Court in the order impugned shall either be made a ground in favour of the accused for deciding such a plea.
1. Leave granted.
2. The respondent was arrested 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 Scheduled Tribes (Prevention of Atroci-ties) 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 Shubhan-gi was killed.
3. 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 agree-able as the deceased belonged to Scheduled Caste and the respond-ent belonged to Teli community which is considered as higher caste. The respondent is alleged to have hatched 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 Baramati 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 Maruti 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 conspira-cy hatched by the accused could not be implemented. Again on 13.12.1999 accused Ms.Vanita took the deceased on the 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 injuries. The task of murdering the deceased was accomplished on 15.12.1999. The deceased was inflicted injuries with knife and stone and was also 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.
4. 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 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 Crimi-nal Procedure in the High Court which was allowed vide the im-pugned order.
5. For releasing the respondent on bail, the High Court has ven-tured to refer to the merits of the case and prematurely held that there was no material on record to show that the respondent was guilty of conspiracy, in execution of which, Shubhangi, 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 establishing the existence of conspiracy and wrongly held that it was diffi-cult to infer the existence of a conspiracy particularly when the respondent had gone to Baramati. The factum of the respondent going to Baramati 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 Baramati he used to have telephonic talks with the other accused persons about the alleged conspiracy. In the absence of “exact talks”, the High Court found that the allegation of conspiracy was not established. The single Judge of the High Court was not justi-fied, at the initial stage, to observe:
“….it is difficult to say that after the conspiracy was hatched the applicant had been to Baramati and from there he used to have talks with other accused on phone regarding the alleged conspira-cy.”
6. 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 under Chapter XVIII of the Code of Criminal Procedure. No exceptional ground has been made out, in the instant case, to depart from such a usual established proce-dure. The order impugned being contrary to law is liable to be set aside.
7. Under the circumstances the appeal is allowed and the 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 the observations made by us in this order while deciding his plea of bail. We make it clear that no observation made by the High Court in the order impugned shall either be made a ground in favour of the accused for deciding such a plea.
