Research › Search › Judgment

Bombay High Court · body

2022 DIGILAW 609 (BOM)

Ridip Das v. State of Goa

2022-03-03

MANISH PITALE

body2022
JUDGMENT : 1. The petitioners in this Petition have approached this Court, in order to challenge orders passed by the Court of Additional Sessions Judge, South Goa, Margao (hereinafter referred to as the Sessions Court), whereby the Applications for discharge filed on behalf of the petitioners have been dismissed. 2. The petitioners are two of the four accused persons in connection with First Information Report (FIR), registered on 28.12.2020, at Verna Police Station, South Goa, for offence under Section 302 of the IPC. Although the FIR was initially registered against unknown persons, pursuant to investigation, the four accused persons were identified as those allegedly responsible for the death of the victim. The petitioners herein are shown as accused nos. 3 and 4. 3. The FIR was registered on 28.12.2020, on the basis of a complaint lodged by a Police Sub Inspector, when the body of the deceased was found at Dando Beach at Velsao. On the dead body being discovered, information was conveyed to the Police, which led the Police Sub Inspector to the scene of the incident, pursuant to which, the complaint was lodged and FIR came to be registered against unknown persons. 4. A perusal of the material on record shows that investigation was undertaken and intelligence was collected. The Police viewed the CCTV footage of a liquor shop, wherein one person was seen with the deceased. On this basis, photographs of the two persons were circulated in Police Stations, including Railway Police Stations in the State of Goa. It appears that during the course of investigation, CCTV footage was also seen of a Petrol Pump at Birla market, wherein five persons were seen together, two of whom appeared to be the persons who were seen in the CCTV footage of the liquor shop. 5. On the basis of the photographs circulated at the Police Stations, information was received from the Konkan Railway Police Station that three suspected persons were apprehended, one of whom was having description similar to the person seen in the CCTV footage, whose photograph was circulated. The said person was confronted and upon interrogation, it was revealed that his name was Manash Das, who allegedly confessed to the commission of the crime. He allegedly identified the victim as one Khagen Nath and he further disclosed that one more person i.e. Manash Nath was involved in the crime. The said person was confronted and upon interrogation, it was revealed that his name was Manash Das, who allegedly confessed to the commission of the crime. He allegedly identified the victim as one Khagen Nath and he further disclosed that one more person i.e. Manash Nath was involved in the crime. On the basis of the aforesaid steps taken during the course of investigation, the petitioners were also arrested, having been found in the company of the said Manash Das. The investigation proceeded further wherein the statements of the witnesses were recorded. One Francisco Aguiar, claimed to be a person who had seen a group of five persons having picnic at Dando Beach on 27.12.2020 i.e. the date of the incident. A test identification parade was organized for the said Francisco Aguiar to identify the persons, whom he had seen at the Dando Beach on 27.12.2020 i.e. the date of the incident. The report shows that he was unable to identify the accused persons. 6. Upon completion of investigation, chargesheet was filed on 25.03.2021, wherein it was stated that the material on record demonstrated involvement of all the accused persons, including the petitioners before this Court, in the aforesaid incident leading to death of the victim. The material placed on record alongwith chargesheet included the panchanama dated 07.01.2021 recorded during the course of investigation, which simply states that the said panchanama was recorded because the accused persons voluntarily desired to disclose certain facts pertaining to the crime. 7. It is stated that the petitioner no. 1 was granted bail by this Court while the petitioner no. 2 continues to remain in custody. 8. The petitioners had applied for discharge before the Sessions Court, but, by orders dated 27.12.2021, the Sessions Court dismissed the Applications for discharge, mainly on the ground the petitioners stood accused of serious offence and that their presence was established by the material placed on record alongwith the chargesheet. The circumstantial evidence on record was enough to prima facie show the involvement of the accused persons. The present Petition is filed challenging the said orders, with a prayer for being discharged in the present case. 9. Mr. The circumstantial evidence on record was enough to prima facie show the involvement of the accused persons. The present Petition is filed challenging the said orders, with a prayer for being discharged in the present case. 9. Mr. Ryan Menezes, learned Counsel appearing for the petitioners submitted that a perusal of the chargesheet and the accompanying material placed on record would show that even if the said material was to be accepted, the petitioners did not deserve to face trial. It was submitted that the contents of the chargesheet itself, would show that there was no reason for the petitioners to be arrested in connection with the aforesaid crime. The petitioners were neither seen in the CCTV footage nor were they identified by the said witness, Francisco Aguiar. It was submitted that a perusal of the panchanama dated 07.01.2021 reveals that even according to the accused no.2 Manash Das, no role was attributable to the petitioners and when the actual assault took place, both the petitioners ran away from the spot of incident. It was further submitted that even if the assertion on the part of the investigating agency was to be considered that the mobile call data records of the petitioners demonstrated their presence at the place of the incident, that in itself would not be a factor against the petitioners. 10. It was submitted that the material on record did not even raise suspicion, much less grave suspicion against the petitioners and therefore, in terms of the settled position of law, the Sessions Court ought not to have dismissed the Applications filed on behalf of the petitioners. On this basis, it is submitted that the present Petition deserves to be allowed and the petitioners be discharged in the present case. 11. On the other hand, Mr. Bhobe, learned Public Prosecutor invited attention of this Court to the facts stated in the chargesheet on the basis of the material that had come on record, pursuant to the investigation. It was stated that the petitioners were arrested as they were found in the company of the co- accused, Manash Das i.e. accused no. 2. It was submitted that in the present case there was no eye witness and therefore, it is a case of circumstantial evidence. It was stated that the petitioners were arrested as they were found in the company of the co- accused, Manash Das i.e. accused no. 2. It was submitted that in the present case there was no eye witness and therefore, it is a case of circumstantial evidence. It was further submitted that the panchanama dated 07.01.2021 did not appear to be either a panchanama of scene of offence or a memorandum recorded under Section 27 of the Evidence Act and therefore, the same could not be relied upon. The learned Public Prosecutor submitted that the present case concerns offence under Section 302 of the IPC, which is a serious offence and the material that has come on record pursuant to the investigation is placed before this Court. 12. Before examining whether the contentions raised on behalf of the petitioners can be accepted, it would be first necessary to refer to the position of law, which by now is well settled. In the case of Union of India Vs. Prafulla Kumar Samal & Another, (1979) 3 SCC 4 , in the context of the scope and ambit of the powers available to the Court, while considering an Application for discharge, the Hon'ble Supreme Court has held as follows: 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 13. This position of law is further elaborated and reiterated by the Supreme Court in its judgment in Sajjan Kumar Vs. Central Bureau of Investigation, (2010) 9 SCC 368 : 21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that 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. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 14. The said position of law makes it very clear that at the stage of considering the question of discharge, the Court can certainly sift through the material on record to satisfy itself as to whether a case for discharge is made out. It is laid down that if the material placed on record gives rise to some suspicion, but not grave suspicion against the accused, the Court would be fully within its right to discharge the accused. It is laid down that if the material placed on record gives rise to some suspicion, but not grave suspicion against the accused, the Court would be fully within its right to discharge the accused. It is further laid down that if there are two views possible and one of them gives rise only to suspicion, as distinguished from grave suspicion, the Court is empowered to discharge the accused and significantly, it is said that the Court is not to see whether the trial would end in conviction or acquittal. 15. The aforesaid principles will have to be applied to the material that has come on record in the present case, pursuant to the investigation and filing of the chargesheet. 16. In the present case, there is no dispute about the fact that the FIR was registered against unknown persons. It is a case of purely circumstantial evidence, as admittedly there was no eye witness at the time of the incident. The investigating authority zeroed in on accused no. 2, Manash Das on the basis of the CCTV footage of the liquor shop, where he was allegedly seen in the company of the victim. On the basis of such photographs being circulated to Police Stations, information was received that the said accused was found at Konkan Railway Station. It appears that the petitioners were in the company of the said person and all three of them were apprehended. The relevant portion of the chargesheet, stating the manner in which the investigation proceeded, reads as follows: “Further while maintaining patrolling in the Police Station jurisdiction, received information from reliable sources at Konkan Railway Station that three suspected persons have been apprehended by the Konkan Railway Police Station and one of the suspected person apprehended is having similar description of which photo was circulated by this P.S. Accordingly self alongwith staff left to the Konkan Railway to verify the same. On reaching at the Konkan Railway Police Station, one of the suspected person was matching with the description in the CCTV footage captured at the Welcome shop. Upon interrogation, one of the suspected accused Manash Das confessed of commission of crime and identified the deceased as Khagen Nath age about 25 years r/o Birla n/o Assam. On reaching at the Konkan Railway Police Station, one of the suspected person was matching with the description in the CCTV footage captured at the Welcome shop. Upon interrogation, one of the suspected accused Manash Das confessed of commission of crime and identified the deceased as Khagen Nath age about 25 years r/o Birla n/o Assam. Further he disclosed that one more accused person is involved in the above crime namely Manash Nath who sustained cut injury to his hand during scuffle and presently hiding at Birla and accordingly we took the custody of all three accused persons from the Konkan Railway Police Station and rushed towards Birla in two private vehicles and further on reaching at Birla, the forth suspected accused person was apprehended who disclosed his identity as Manash Nath. As such all the four accused persons were brought at the Verna Police Station for further course of investigation.” 17. It is further stated in the chargesheet as follows: “Further during the investigation, the accused persons, namely Manash Nath and Manash Das volunteer to disclose the facts about the crime and accordingly secured the presence of panch witnesses and conducted a Disclosure Panchanama wherein the accused persons disclosed the facts about purchase of liquor by Manash Das and Manash Nath. They also guided us to the crime scene. While conducting the panchanama, Accused Manash Das identified one aged person who was present at the spot while conducting the panchanama and informed that the said person had came to them on the day of the incident and had communicated with them.” 18. A perusal of the above quoted portions shows that accused no. 2 Manash Das on being apprehended and interrogated, allegedly confessed to the crime and identified the victim. He then allegedly disclosed that one more accused person was involved and he specifically named the accused no. 1, Manash Nath. It is nowhere stated that during the course of investigation and interrogation, the said accused person at any time named the petitioners also as those involved in the crime. Yet, it is recorded that all the three persons i.e. accused no. 2, Manash Das and the petitioners were arrested. It appears that that the petitioners were arrested because they were seen in the company of the said accused no. 2, Manash Das at Konkan Railway Police Station. 19. Yet, it is recorded that all the three persons i.e. accused no. 2, Manash Das and the petitioners were arrested. It appears that that the petitioners were arrested because they were seen in the company of the said accused no. 2, Manash Das at Konkan Railway Police Station. 19. It is significant that the said Francisco Aguiar, whose statement was recorded during the course of investigation, claimed that he had seen a group of five persons on the date of incident at Dando Beach having a picnic. The investigating authority proceeded on the basis that this person had indeed seen the four accused persons and the victim at the spot of the incident. On this basis, an identification parade was conducted, but admittedly, the petitioners were not identified by the said witness, Francisco Aguiar. During the course of investigation, call detail records of the mobiles of the accused persons were seized. The Sessions Court has specifically mentioned that the said records do show the presence of the petitioners at the spot of the incident. 20. In this context, the panchanama dated 07.01.2021 becomes relevant. Although the learned Public Prosecutor may be justified in contending that the Court cannot look at the said panchanama beyond appreciating statements made by the accused that would lead to recovery of the weapon of assault or other such material, but, this Court is referring to the said panchanama, only to the limited extent of examining that even if the contents thereof are accepted as it is, where is the case of the prosecution proceeding. In the said panchanama, accused no. 2, Manash Das has described the manner in which the incident allegedly took place. It is stated that the accused persons, alongwith the victim, were together when they consumed alcohol and in an intoxicated state the victim allegedly caught hold of the neck of accused no. 2, Manash Das. Due to this, accused no. 1, Manash Nath allegedly got agitated and took an empty bottle and smashed it on the head of the victim. It is significant that the accused no. 2, Manash Das stated that on seeing this, the petitioners ran away from the spot of the incident. He further stated that they went to their room, took their bags and went to the Railway Station to leave the State. 21. It is significant that the accused no. 2, Manash Das stated that on seeing this, the petitioners ran away from the spot of the incident. He further stated that they went to their room, took their bags and went to the Railway Station to leave the State. 21. This is the nature of the material placed on record alongwith the chargesheet by the investigating authority to claim that all the accused persons, including the petitioners herein deserve to face trial. 22. This Court has minutely perused the chargesheet and the accompanying material placed on record. Even if the material placed on record is to be accepted as it is, at worst, the presence of the petitioners at the spot of the incident could be claimed on behalf of the prosecution. The said claim is also fraught with suspicion and doubt, for the reason that during the course of investigation, the genesis of the incident was described by the co- accused, Manash Das and involvement of only co-accused Manash Nath was indicated. It is difficult to comprehend as to on what basis the petitioners were arrested, other than for the reason that they were seen in the company of Manash Das at Konkan Railway Station. The CCTV footage nowhere connects the petitioners either with the incident or with the deceased. The statement recorded in the panchanama dated 07.01.2021, whatever its value, in fact, indicates that if the petitioners are made to face trial on the basis of such material, there is no possibility of any incriminating circumstances coming on record raising grave suspicion against the petitioners. 23. Thus, taking the material on record as it is, at worst, some suspicion regarding presence of the petitioners at the time of the incident may arise, but there is certainly no material on record to raise grave suspicion against the petitioners. In fact, the case of the petitioners falls squarely in clause (vii) of paragraph 21 of the aforesaid judgment of the Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (supra). 24. The Sessions Court erred in not appreciating the said position of law and not applying it to the facts of the present case. In fact, the case of the petitioners falls squarely in clause (vii) of paragraph 21 of the aforesaid judgment of the Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (supra). 24. The Sessions Court erred in not appreciating the said position of law and not applying it to the facts of the present case. A perusal of the orders dated 27.12.2021, passed by the Sessions Court, dismissing the Applications for discharge filed by the petitioners, would show that the Sessions Court proceeded more on the basis of the seriousness of the offence. The Sessions Court has appreciated the material on record in the context of accused nos. 1 and 2, while holding against the petitioners, who are co- accused nos. 3 and 4. It is stated that although, the petitioners are not identified in the identification parade and this is not a case of direct evidence, yet, the Sessions Court has proceeded to hold that the circumstantial evidence on record, prima facie, shows the involvement of the petitioners in the crime. 25. This Court is unable to agree with the findings rendered by the Sessions Court and it is found that on applying the aforesaid settled position of law to the facts of the present case, the petitioners deserve to be discharged. 26. In view of the above, the Petition is allowed. The orders passed by the Sessions Court are quashed and set aside. Consequently, the petitioners are discharged. 27. As noted above, the petitioner no. 1 was already enlarged on bail, but the petitioner no. 2 is still in custody. In view of the fact that both the petitioners have been discharged, the petitioner no. 2 shall be released forthwith, unless required in any other offence. 28. Bail Bonds of the petitioner no.1, shall stand discharged.