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2014 DIGILAW 1413 (BOM)

Pravin Navnath Mutke v. State of Maharashtra

2014-07-03

V.M.DESHPANDE

body2014
Order [1] The present Revision is filed against the judgment and order of conviction, passed by the Judicial Magistrate, First Class, Jamkhed, dated 13.5.1998 in R.T.C. No. 36 of 1996, by which the learned Magistrate was pleased to convict the present applicant for the offence punishable under Section 385 of the Indian Penal Code and he was directed to suffer Simple Imprisonment for one year. The learned Magistrate also convicted the applicant for the offence punishable under Section 387 of the Indian Penal Code and on that count also he was directed to suffer Simple Imprisonment for one year and to pay a fine of Rs.500/-, and in default he was directed to suffer Simple Imprisonment for one month. The learned Magistrate directed that both the sentences shall run concurrently. Being aggrieved, the applicant challenged the afore said judgment and order of conviction by filing Criminal Appeal No. 26 of 1998 before the appellate court. The learned Joint District Judge and Additional Sessions Judge, Ahmednagar, by judgment and order, dated 20.10.2000 dismissed the appeal and confirmed the original order of conviction passed by the learned Magistrate. [2] Rule was issued in the present Revision on 19.12.2000 and pending final disposal of the Revision, the substantive jail sentence of the applicant was suspended and the applicant was released on bail. [3] At the time of final hearing, learned counsel for the applicant pointed out that the present applicant is convicted only on the basis of suspicion. According to him, there is no legal and admissible evidence connecting him in the present crime. According to him, there is no iota of evidence against the present applicant. He submitted that in view of the authoritative pronouncement of Hon'ble Apex Court, in the case of Sujit Biswas vs. State of Assam, reported in AIR 2013 SC 3817 , the applicant needs to be acquitted at once. [4] Per contra, the learned Additional Public Prosecutor submitted that the prosecuting agency has completed the chain of circumstances against the present applicant. He submitted that there is no error or perversity in any of the orders passed by the courts below, and therefore, he prayed that Revision be dismissed. [5] In brief, following is the prosecution case. PW 2Ramesh Harakchand Gugale, a cloth merchant, on 8.3.1996 at about 1 noon, received a closed envelope by post at his shop address. He submitted that there is no error or perversity in any of the orders passed by the courts below, and therefore, he prayed that Revision be dismissed. [5] In brief, following is the prosecution case. PW 2Ramesh Harakchand Gugale, a cloth merchant, on 8.3.1996 at about 1 noon, received a closed envelope by post at his shop address. On opening the said envelope, he found that the threat was extended to him that, if Rs.Five Lacs are not paid, then there will be a damage of crores of rupees and also to the life of his family members. In the said letter, a map was drawn and Ramesh was directed to come at a particular place on 18.2.1996. [6] On 10.3.1996, he received another letter in which it was directed that he should come at a particular place by 1 noon on 10.3.1996 with money, else he will have to suffer consequences. Ramesh Gugale approached to the police station and he produced those two letters with the police. Police recorded his first information report and a crime was registered for the offences punishable under Sections 385 of the Indian Penal Code. Thereafter, P.S.I. Bhdhwant, along with constables of his police station, panchas Dattatraya Hoshing and Arun Chintamani and the first informant PW 2 Ramesh Gugale, decided to go to the spot as mentioned in the letters along with briefcase to catch the culprit. Accordingly, they proceeded in a private jeep from Jamkhed to one hill in forest area at village Nahuli. Thereafter the first informant PW2 Ramesh Gugale, P.S.I. and two panchas first went to the hut shown on the hill in the map drawn in the letter. There was empty briefcase with them. PW 2 Ramesh Gugale kept it inside the hut and then they concealed themselves behind big stones and small bushes. The remaining police were standing near the hill watching what was going to happen. After some time, the present applicant was found coming towards the hut with some thing in his hand. He was wearing banian and pant. When the applicant entered the hut, 23 police who were inside caught the applicant. He was holding an axe with him. Thereafter in presence of panchas, search of the applicant/accused was taken and panchanama was drawn. One letter was found in the pocket of the pant of the applicant. He was wearing banian and pant. When the applicant entered the hut, 23 police who were inside caught the applicant. He was holding an axe with him. Thereafter in presence of panchas, search of the applicant/accused was taken and panchanama was drawn. One letter was found in the pocket of the pant of the applicant. The Police attached the said letter-cum-chit and already drawn separate panchanama in the police station whereby two envelopes and letters were received therein by the first informant PW 2 Ramesh Gugale. [7] Upon interrogation, it was found that the applicant was resident of Baraswadi. Therefore, his house was searched. In the search of the house, one inland letter bearing address of one Shantilal Gugale giving similar threats was found. That chit was also seized. After investigation, the charge sheet was filed. [8] Learned Magistrate, on 25.7.1997 vide Exh.10 framed charge against the present applicant for the offences under Sections 385 and 387 of the Indian Penal Code. The applicant claimed for trial. In order to bring home the guilt, the prosecuting agency has examined PW 1 Dattatraya Hoshing, who acted as panch in the present case on three occasions, PW 2 Ramesh Gugale, the first informant, who received the threats allegedly given by the present applicant. PW 3Prakash Chavan, who was one of the member of the police raiding party to reach to specify place as mentioned in the chit. [9] After perusal of the record and proceedings and after perusal of the judgment, passed by both the courts below, it appears that the letters received by the first informant PW 2Ramesh Gugale are at articles 1 and 2; while letter recovered as per the prosecution case from the house of the present applicant vide seizure panchanama Exh.19 is at article 5 on record. [10] Admittedly, these letters were not sent to the hand writing expert. Prosecution did not examine anyone to prove that, those letters articles 1, 2 and 5 were in the hand writing of the present applicant. In fact, learned lower appellate court in paragraph 13 of its judgment has recorded a finding that the authorship of those letters is not at all proved. Prosecution did not examine anyone to prove that, those letters articles 1, 2 and 5 were in the hand writing of the present applicant. In fact, learned lower appellate court in paragraph 13 of its judgment has recorded a finding that the authorship of those letters is not at all proved. Further, it is found by the appellate court that no investigation was carried out to show that the letters articles 1 and 2 received by the first informant PW 2 Ramesh were in the hand writing of the present applicant. [11] The courts below found that the applicant was found in the vicinity of the hut at the top of hillock as mentioned in articles 1 and 2 and he has touched the briefcase which was kept by the raiding party. [12] From the evidence of PW 3 Prakash Chavan, one of the member from the raiding party, the said hut was of Forest Department and he and one Andharkar entered in the said hut and the first informant kept the briefcase in the said hut. Thus, it is clear from the evidence of PW 3 Prakash Chavan that the briefcase was kept inside the hut by the first informant. This evidence is contrary to the contemporary document, namely Exh.18, the preraid panchanama. Perusal of the said panchanama shows that the first informant was directed by the police party to keep the briefcase in front of the hut. What is interesting is that the said briefcase was also not attached during the investigation by the investigating officer, which fact is also recorded by the learned lower appellate court as well as by the trial court in the judgments. For the reasons best known, in the present case, the investigating officer failed to step into witness box, thereby opportunity to cross-examine him by the applicant was denied, causing serious prejudice to the present applicant. [13] The Hon'ble Apex Court, in the case of Sujit Biswas vs State of Assam, reported in AIR 2013 SC 3817 has observed in paragraph 6 as under : “6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.” [14] On the touchstone of the afore said guiding principles, if the evidence of the prosecution is tested, then it is clear that there is no evidence against the present applicant that he was the author of articles 1 and 2 received by PW 2Ramesh. Articles 1, 2 and 5 are in the hand writing of one and the same person. Further, the important piece of evidence that briefcase, which was touched by the present applicant resulting into his arrest, is also not seized. Merely because the applicant was found near the hut with axe is not sufficient to hold that it is the applicant who has sent articles 1 and 2 to PW 2 Ramesh and in pursuance to that he was present there. Merely because the applicant was found near the hut with axe is not sufficient to hold that it is the applicant who has sent articles 1 and 2 to PW 2 Ramesh and in pursuance to that he was present there. Axe in the villages is most common. Further, from the evidence of PW 3Prakash Chavan the hut was belonging to the Forest Department. [15] Thus, it is clear that the prosecution against the present applicant does not proceed a inch further except suspicion. Therefore, I find myself unable to agree with the findings recorded by the courts below. In fact, the approach of both the courts below, as observed, in my opinion is perverse approach. Therefore, it is a fit case wherein this court should exercise its revisional powers in order to avoid miscarriage of justice. [16] In the result, I pass following order. (i) The judgment and order of conviction, passed by the Judicial Magistrate, First Class, Jamkhed, dated 13.5.1998 in R.T.C. No. 36 of 1996, as also the judgment and order, passed by the learned Joint District Judge and Additional Sessions Judge, Ahmednagar, dated 20.10.2000 in Criminal Appeal No. 26 of 1998 are quashed and set aside. (ii) The bail bond of the applicant stand cancelled. (iii) Rule is made absolute. (iv) Revision allowed.