Allowed

Sunil Baburao Suryawanshi v. the State of Maharashtra

Bombay HC21 Oct 2013APPLN/950/2013

Case brief

AI extract

What is this about?

In a criminal application for discharge before the Additional Sessions Judge, this court held that general suspicion and political rivalry were insufficient grounds for trial when investigation yielded no further evidence. The court allowed the application, quashing the accusation against the applicant alleged to have conspired in a murder.

What did the court decide?

Application allowed; the trial court ought to have discharged the applicant under Section 227 CrPC.

Sunil Baburao Suryawanshi Vs the State of… — Murder and Culpable Homicide | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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CRIMINAL APPLICATION NO.950 OF 2013

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SUNIL BABURAO SURYAWANSHI. ... APPLICANT. VERSUS

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THE STATE OF MAHARASHTRA. ...RESPONDENT.

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Advocate for Applicant : Mr.Jadhav Satej S. APP for Respondents: Mr.P.N. Muley.

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CORAM : ABHAY M. THIPSAY, J.

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21st OCTOBER, 2013.

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ORAL ORDER:

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Heard Mr. Satej Jadhav, learned Counsel for the

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applicant and Mr. Muley, learned A.P.P. for the State.

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The applicant is one of the accused - accused No.

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2 in Sessions Case No.16/2012, pending before the

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Additional Sessions Judge, Beed. There are totally 17 accused including the applicant, in the said case. The allegation against the applicant and other accused is of offences punishable under Sections 302, 307, 323 of I.P.C. r/w Section 149 of I.P.C, sections 147, 148 and 120B of I.P.C. as also, offences punishable under the Arms Act. The applicant made an application for discharge, as contemplated under Section 227 of the Code of Criminal Procedure. That application was rejected by the learned Additional Sessions Judge by order dated 21.1.2013. Being aggrieved thereby, the applicant has approached this Court invoking the inherent powers of this Court.

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Mr. Satej Jadhav, learned Counsel for the

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applicant submitted that there is no material for proceeding against the applicant. He submitted that even if the entire charge-sheet is perused and the

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material contained therein is taken at face value, there

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was no case for proceeding against the applicant.

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With the assistance of the learned Counsel for the

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applicant and learned A.P.P., I have gone through the application, the annexures thereto and also the copy of the charge-sheet, made available to me by the learned A.P.P.

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On 11.10.2011, one Babu @ Ravindra Khakal

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maternal uncle of Pravin Bhausaheb Gondkar - first informant, was assaulted by a number of persons with deadly weapons. As a result of the brutal assault, the said Babu @ Ravindra Khakal died on the spot.

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Admittedly, the applicant was not present on the

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spot, at the time of assault.

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The case of the Investigating Agency is that the

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said Babu @ Ravindra Khakal was murdered, in pursuance of a conspiracy that was hatched by and between the accused persons including the applicant. The case is that there was some political rivalry and that, the assailants and the other accused had conspired to attack and commit murder of Babu @ Ravindra Khakal.

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The claim that the applicant was one of the

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conspirators is based primarily, on the claim that the actual assailants, while running away after the assault, uttered, as follows:-

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" आपलेकामझालेआहे. आमचे मागेसुनीलनारायणनाथ, सुनीलबाबरावसु ूययवशीं (the applicant) वमानेसाहेबआहेत मागचयासारखेचहेहीपाहूनघेतीलतुझयानेआमचेकायवाकडे

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होतनसतेअसेमलामहणाले."

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Translated into English, it would read, thus:-

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"Our work is done. Sunil Narayan Nath, Sunil Baburao Suryawanshi (the applicant) and Mane Saheb are behind us to protect us and they would look after the matter as was done, previously. That, you (the first informant) would not be able to do anything to us."

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Apart from this, it is also stated that Babu @ Ravindra Khakal had told the first informant Pravin when he had come to the village about 10 -12 days before the incident that Babu @ Ravindra Khakal, had been called to Police Station by by Police Officer Mane and Mane had threatened Babu in the presence of SunilNath and Sunil Suryawanshi, (i.e. the applicant) that last time, he survived; but, now he would be killed and that, how the charge-sheet is to be sent, that would be looked after by Mane.

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10. It is contended by the learned Counsel for the

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applicant; firstly, that this material is not reliable. He submitted that if the assailants had, indeed, made such utterances, the same ought to have been heard by the other eye witnesses also, but, none of the other eye

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witnesses speak about the assailants having uttered anything about Sunil Nath, Sunil Suryawanshi and

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Mane being behind them etc. Secondly, he submitted

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that even assuming that such a statement was, indeed, made by the assailants while running away, still, it would fall short of establishing that the applicant was one of the conspirators in the conspiracy to commit murder of Babu @ Ravindra Khakal. He submitted that it would, at best, show that the assailants were relying on the applicant and said other two for protecting them.

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The learned A.P.P. submitted that apart from this

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material, there was sufficient material in the charge-

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sheet to indicate that the applicant and the other accused were on inimical terms with the deceased. Indeed, it does appear that there was some political rivalry and the co-accused Sunil Nath was a staunch opponent of the deceased Babu @ Ravindra Khakal. It

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also appears that the present applicant and the other

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accused in this case were also on rather inimical terms with the deceased.

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The question however, is, - whether this by itself

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would be sufficient for proceeding against the applicant?

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Though the material in the charge-sheet is not to

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be meticulously analyzed for the purpose of framing of

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charge, its limited evaluation is necessary, even at that

stage.

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In the instant case, there is substance in the

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contention advanced by the learned Counsel for the applicant that if the assailants had, indeed, made utterances as mentioned in the F.I.R., the other eye witnesses, who were present there, also would have heard those utterances. The contention that, though the other eye witnesses were present at the time of assault, do not speak of any such utterances, is relevant and would need to be taken into consideration,

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even at this stage.

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However, the crucial aspect of the matter is not that. It is that, those utterances, by themselves, do not indicate that the assault was at the instance of the present applicant, or that the present applicant was a conspirator in respect of the conspiracy to commit murder of said Babu @ Ravindra Khakal. All that it indicates is that the assailants were banking on the

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support of said Sunil Nath, the applicant and police

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officer Mane.

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Undoubtedly, in the village, where there is political rivalry between two groups one group may always rely on the support from other members of that group, in case of an assault on a member of that group. It would also be natural for the victims, or their relatives, or friends, to instantly suspect the persons from rival group in case of an assault. Such suspicion would be against all the persons from the rival group. However, such suspicion would be based only on the perceived enmity between the parties and would not have any other basis. Such a suspicion, howsoever genuine, would not, by itself, form, objectively, sufficient basis for proceeding against such person, though it may be good enough for the arrest and interrogation of such person / persons. .

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Apart from the fact that, that the assailants,

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indeed, made the utterances, is not free from doubt, the fact also remains that these utterances by themselves, are not sufficient to indicate the applicant to be a conspirator in the alleged conspiracy to commit murder of Babu @ Ravindra Khakal.

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Under Section 227 of the Code, the Court is

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empowered to discharge an accused if in its opinion, there would be no sufficient ground for proceeding against the accused. While considering whether or not, there is sufficient ground for proceeding against an accused, all the relevant aspects of the matter and the entire material in the charge-sheet needs to be considered. Where it would appear to the Court that there would ultimately, be no possibility of a conviction

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being based on the evidence that is proposed to be adduced, the Court would be justified in passing an

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order of discharge.

In the instant case, as aforesaid, the allegation

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against the applicant and the suspicion felt about him is based only on the fact that there exists a rivalry between the group of the deceased and the group of one

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Sunil Nath - a co-accused - to which group, the applicant appears to be belonging. Whenever, a member of one group is attacked,- by any members of the other group, it is not necessary that such assault must be in pursuance of a conspiracy - and that too by all members of the opposite group. On the basis of such general suspicion, it would not be proper to require the applicant to face the trial when in the course of investigation, that was carried out, nothing further could be gathered by the Investigating Agency.

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Though, such suspicion might be sufficient for initially implicating the applicant and for leveling an accusation

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against him, if, in the course of investigation, the matter could not be taken to a higher level by gathering

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some further material against such suspect / accused

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then, it would be futile to proceed further against him.

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