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2014 DIGILAW 147 (BOM)

State of Goa v. Ganesh Hegde

2014-01-22

T.V.NALAWADE

body2014
JUDGMENT The revision is filed to challenge the order of discharge made in Sessions Case No.24/2012, which was pending before the learned Additional Sessions Judge-I, South Goa, Margao. The respondents are discharged of the offences punishable under Sections 302, 201 and 34 of the Indian Penal Code. Both the sides are heard. 2. This Court has perused the entire record of investigation and this Court has also gone through the reasoning given by the learned Additional Sessions Judge. The deceased, Vincy was a friend of the respondents. He was aged about 20 years. He had taken a hand loan of Rs.5,000/- from Maruti. 3. The deceased left home on 11/06/2012 and on that day right from beginning he was in the company of the accused. He visited various places where he consumed liquor, food and purchased tobacco with these persons. He left the bar where they had consumed liquor and taken meal at about 12.30 p.m. A friend of Vincy used to call him. On that day, when she realised that Vincy had called repeatedly, she called him at about 12.30 p.m. and Vincy responded to it. 4. These three boys then went to quarry where the incident took place. The quarrel started at this place and during quarrel, the appellant was pushed into the quarry having deep water. Vincy drowned at this place. His pair of black slipper was on the bank of the quarry and his clothes were also there. One lady by name Surekha was passing by that side and she noticed that both the accused were looking down towards the water. They were anxious and were found disturbed. This lady made inquiry with the boys but the accused told her that they were watching fish. There was a pair of black slippers on the bank and both these accused were having their footwear. So, the lady had suspicion against these boys. Vincy used to leave the house in the morning and used to return early in the evening. On that day, as Vincy did not return and as the complainant, uncle of Vincy knew that Vincy was in the company of accused, uncle made inquiry with the accused. The accused informed that from the bar Vincy had left their company and he had gone with other friend. On that day, as Vincy did not return and as the complainant, uncle of Vincy knew that Vincy was in the company of accused, uncle made inquiry with the accused. The accused informed that from the bar Vincy had left their company and he had gone with other friend. Missing report was given on 12/06/2012 by the uncle in which the uncle gave the names of the accused as the persons who were in the company of Vincy on that day, though he did not express suspicion against them. Police called the accused in view of the missing report and to them different versions were given by these boys. 5. The dead body of Vincy was found in the aforesaid quarry on 13/06/2012. The FIR came to be given on 13/06/2012 itself, in which the uncle of Vincy blamed the accused for the incident. He informed that the aforesaid girlfriend of Vincy had supplied information that Vincy was saying that Vincy was feeling that there was a possibility of quarrel between him and his friends. 6. Both the accused came to be arrested. While in police custody, accused Maruti gave statement and on the basis of his statement one slipper of Vincy came to be recovered from one place, which was found in bushes. The accused then led police to other spot and from there he produced other articles of Vincy like T-shirt, shorts, mobile handset. These articles were found to be kept in rivulet, in water which was knee deep. 7. The statements of many witnesses are recorded showing that these two accused were in the company of Vincy on that day at least up to 12.30 p.m. Lastly, Surekha had seen these boys at about 4.30 p.m. near the quarry, where the dead body was found. In IT parade Surekha identified the two accused. 8. The aforesaid material shows that this material is to the effect that the deceased was last seen on that day from early hours till 4.30 p.m. in the company of the accused. The dead body was found in the quarry where the accused were seen by witnesses Surekha on that day. There is also the material like recovery of the articles of the deceased at the instance of the accused Maruti. This material is relevant under Sections 8, 9, 27, 106 and 114 of the Evidence Act. The dead body was found in the quarry where the accused were seen by witnesses Surekha on that day. There is also the material like recovery of the articles of the deceased at the instance of the accused Maruti. This material is relevant under Sections 8, 9, 27, 106 and 114 of the Evidence Act. Surprisingly, the learned Additional Sessions Judge has not touched these sections and has not considered the aforesaid material under these sections. The conduct of the accused in such cases is also material. In view of the aforesaid material it was necessary for the accused if they were innocent to approach the relatives or police to inform that Vincy had a fall in the aforesaid quarry. The accused gave false information to everybody. This circumstance also can be considered as a material against the accused. 9. The order made by learned Additional Sessions Judge shows that the evidence is virtually scrutinized for trial by the learned Judge. For framing the charge, the Court is expected to see as to whether the material is sufficient for proceeding against the accused and the Court is not expected to ascertain as to whether the material will be sufficient to convict the accused. Further, the material as it is, as unrebutted, without considering the probabilities which may be in favour of the accused needs to be considered by the Court. Totally wrong approach was adopted by the learned Additional Sessions Judge. This Court holds that the aforesaid material is sufficient for framing charge as mentioned in Section 228 of Criminal Procedure Code and it cannot be said that the material is not sufficient for proceeding against the accused as mentioned under Section 227 of the Criminal Procedure Code. 10. In the result, this Court holds that the order of learned Additional Sessions Judge cannot sustain in law. The revision stands allowed. The order made by the learned Additional Sessions Judge is hereby set aside. The matter is restored to its file. Learned Additional Sessions Judge is to take further steps against the accused in view of this order.