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2003 DIGILAW 615 (BOM)

Sujit Dinanat Sadan v. State of Maharashtra

2003-06-24

P.S.BRAHME

body2003
JUDGMENT - BRAHME P.S., J.:---Heard Shri Tiwari, learned Counsel for the applicant and Shri Loney learned A.P.P. for respondent State. 2. The applicant-Sujit Sadan who is original accused No. 1 in Criminal Case S.T. No. 254/1994 has preferred this revision application against the order dated 27-7-1999 passed by the Additional Sessions Judge, Amravati rejecting his application for discharge. The applicant alongwith one Sunil Athawale (original accused No. 2) stands charged for offence punishable under section 302 read with section 34 of Indian Penal Code on the allegation that they in furtherance of their common intention committed murder of one Chandrabhan Punshi on the night intervening 28-8-93 and 29-8-93. As per the prosecution case deceased was assaulted by original accused No. 2-Sunil with knife, he was armed with. During the course of investigation the statement of one Sandip Lolusare was recorded. This witness Sandip was admittedly a common friend of the applicant and accused No. 2 Sunil. In fact this Sandip, in his statement recorded under section 161 Cri.P.C. claimed that accused No. 2-Sunil had made extra judicial confession in which the name of the present applicant was implicated and it was on the basis of that statement of witness-Sandip that the present applicant came to be made as accused in the case in connection with the murder of victim. Therefore, the applicant filed application before the Additional Sessions Judge, vide Exhibit 8 claiming discharge. The learned Additional Sessions Judge did not find favour with the applicant and consequently his application for discharge stood rejected. 3. Shri Tiwari, the learned Counsel vehemently submitted that except the statement of witness Sandip there is no material showing complicity of the present applicant in the commission of the crime. He submitted that confessional statement by co-accused made to the witness Sandip cannot be the basis for holding the applicant guilty for offence much less to frame charge against him. To substantiate his submissions he placed reliance on the decision of this Court in (Gopal Govind Chogale, petitioner v. The Assistant Collector of Central Excise another, respondents)1, reported in 1985(2) Bom.C.R. 499 . To substantiate his submissions he placed reliance on the decision of this Court in (Gopal Govind Chogale, petitioner v. The Assistant Collector of Central Excise another, respondents)1, reported in 1985(2) Bom.C.R. 499 . He submitted that even in the extrajudicial confession as stated out in the statement of witness Sandip nothing has been attributed, nor any role has been attributed to the present applicant in commission of murder of victim and therefore, even by the force of section 34 of I.P.C. the applicant cannot be charged with the offence of committing murder. He also pointed out that the applicant had no enmity with deceased. The charge against the applicant is ex facie groundless and therefore, the Sessions Judge has committed an error in rejecting the application. 4. Mr. Loney, learned A.P.P. submitted that the statement of witness Sandip shows that the applicant was with co-accused-Sunil and in the quarrel that ensued with the deceased as a result of co-accused Sunil having dashed down the victim by the scooter, deceased was assaulted and multiple injuries were sustained by him and even presence of the applicant with Sunil at the time of occurrence renders him liable and accountable for the assault by co-accused Sunil on the victim. Learned A.P.P. placed reliance on the decision of the Apex Court in (Lallan Rai others, appellant v. State of Bihar)2, 2003 Cri.L.J. 465. He also placed reliance on the decision of the Apex Court in (Niranjan Singh Karam Singh Punjabi, Advocate, appellant v. Jitendra Bhimraj Bijja others, respondents)3, A.I.R. 1990 S.C. 1962 wherein the Apex Court has laid down the principle which the Court has to bear in mind while considering the claim of the accused for discharge. It seems well settled law that at the stage of framing the charge, the Court is required to evaluate the material documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 5. Mr. The Court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 5. Mr. Loney, submitted that as observed by the trial Court in the order knife and goggle of the applicant was found at the place of occurrence. In such a situation prima facie taking into consideration the confessional statement of co-accused coupled with the fact that the appellant was present at the time of occurrence with Sunil. The learned Sessions Judge was right in rejecting the application or the claim of the applicant for discharge. 6. After giving thoughtful consideration to the submission of the Counsel for the parties, I am of the opinion that the learned Sessions Judge has committed no error in rejecting the claim of the applicant for discharge. In the first place, there seems to be no hurdle in placing reliance on confessional statement made by co-accused, as it has been reflected in the statement of witness-Sandip. What weight is to be attached to that confessional statement, will be a matter of merit to be considered by the Court at the trial. Therefore, the decision of this Court in 1985 Mh.L.R. page 890 (supra) relied upon by the Counsel for the applicant has no application so far as the case before hand is concerned. In my opinion the reason for not applying the decision is that the confessional statement of the co-accused was recorded in a case arising out of offence under the Customs Act, 1962. The Court has observed that the confessional statement of the co-accused is held to be as a weak type of evidence. 7. So prima facie accepting the confessional statement of the co-accused, the facts that undisputedly emerged are the presence of the applicant with the co-accused, the presence of the accused/applicant at the time and place when the co-accused assaulted the applicant. It is true that the applicant was in no way concerned with the victim. We accept the submission of learned Counsel for the applicant that the applicant was not acquainted with the victim much less there was any enmity between them and that seems to be the case with the co-accused also. It is true that the applicant was in no way concerned with the victim. We accept the submission of learned Counsel for the applicant that the applicant was not acquainted with the victim much less there was any enmity between them and that seems to be the case with the co-accused also. If we see the manner in which the incident has occurred and particularly that of assault on the victim, it is clear that the victim came to be assaulted on account of quarrel that ensued when the victim was dashed down by the scooter which was driven by the co-accused Sunil and the present applicant was a pillion rider. Therefore, the incident has occurred on the spur of moment in the particular situation. In this view of the matter, merely because the applicant had no acquaintance with the victim, or that he had no enmity with him cannot be a ground to hold that the applicant had no reason to share the common intention with the co-accused. 8. It has come in the order of the learned Sessions Judge that the applicant while running away from the place of incident has lost his goggle and knife and that indicates that the applicant has controverted this observation of the Sessions Judge saying that there is no iota of evidence, nor even the co-accused stated in his confessional statement that the applicant was armed with knife. The learned Counsel further pointed out from the confessional statement that the co-accused in fact made a grievance with the witness Sandip saying that how he had friendship with the applicant, who did even keep with him any weapon like knife. The observations made by the learned Sessions Judge in the order in that regard will be scrutinized at the trial, to find out veracity of the same. Even we accept that observation that the knife was with the applicant, is not correct, we do not find that for that reason alone the applicant is liable to be exonerated or absolved of the liability which is likely to be fastened on him for commission of murder taking recourse to section 34 of I.P.C. 9. The Apex Court in a recent decision 2003 Cri.L.J. 465 (supra), while considering the fact of sharing of common intention under section 34 I.P.C. has observed that mere distancing himself from the scene cannot absolve the accused. The Apex Court in a recent decision 2003 Cri.L.J. 465 (supra), while considering the fact of sharing of common intention under section 34 I.P.C. has observed that mere distancing himself from the scene cannot absolve the accused. The requirement of statute is sharing common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused. The Apex Court also has said that, though the same however, depends upon the fact situation of the matter under consideration and rule steadfast can be laid down therefor. In my opinion, at this stage the circumstances that the applicant's presence at the place of occurrence when the co-accused assaulted the victim in his presence inflicting the blows after blows with knife and the applicant only watching the same, was standing as a silent spectator, without doing any act even of disarming the co-accused while inflicting blows with the knife on the victim, is sufficient to render him accountable, for the crime that has been committed by the force of section 34 of I.P.C. 10. It is needless to say that while considering the application for claiming discharge by the accused the evaluation of the material and the documents has to be done by the Court with a view to find out if the facts emerging therefrom correspond to all the ingredients constituting the alleged offence. We do not dispute the proposition that is laid down by the Apex Court in A.I.R. 1990 S.C. 1962 that at times the Court is permitted in the process of evaluation for a limited purpose to sift the evidence even at the initial stage. But the object in doing so is certain to fathom out whether prima facie involvement of the accused is apparently, on the face of it disclosed. In the case before hand in the facts and circumstances, even expanding the limit of sifting the material, itself prima facie show that involvement of the appellant. It is certainly a case where it cannot be said that the charge against accused applicant is groundless. Therefore, the learned Additional Sessions Judge committed no error in rejecting the application. There is no merit and substance in the revision and the same is dismissed. It is certainly a case where it cannot be said that the charge against accused applicant is groundless. Therefore, the learned Additional Sessions Judge committed no error in rejecting the application. There is no merit and substance in the revision and the same is dismissed. While disposing of this revision, taking into consideration the fact that by now a period of almost four years has lapsed, the trial Court is expected to decide the Sessions trial expeditiously as early as possible. Revision dismissed. -----