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CASE NO.: Appeal (crl.) 297  of  2001

PETITIONER: THE STATE OF MAHARASHTRA

       Vs.

RESPONDENT: RITESH S/O VASUDEO WANJARI

DATE OF JUDGMENT:       15/03/2001

BENCH: K.T. Thomas & R.P. Sethi

JUDGMENT:

SETHI, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

   The  respondent  was arrested in connection  with  Crime No.129/99 registered by the Police Station, Goregaon for the offences punishable under Sections 302, 109, 120B, 364, 397, 201  read with Section 34 of the Indian Penal Code and under Section 3(i)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention  of  Atrocities) Act.  He has been granted  bail pending  trial vide the order impugned in this appeal on the ground that there was no material on record to establish the involvement of the respondent in the commission of the crime and  that  the  accused  was   not  aware  of  the  criminal conspiracy,  in  execution of which, the deceased  Shubhangi was killed.

   According  to the prosecution, the respondent had a love affair  with  the  deceased  Shubhangi.   The  deceased  was insisting  for  marriage  to which the  respondent  and  his mother  were  not  agreeable  as the  deceased  belonged  to Scheduled   Caste  and  the   respondent  belonged  to  Teli community   which  is  considered  as  higher  caste.    The respondent  is  alleged to have hatched a conspiracy to  get rid  of Shubhangi by eliminating her.  In furtherance of the conspiracy  and  to  create  evidence  in  his  favour,  the respondent  went  to  Baramati on 25th November,  1999.   On 11.12.1999  one  Ms.Vanita contacted the deceased,  who  was working  at Nagpur, and took her to market on the pretext of making  preparations  for marriage of the deceased with  the respondent.   In  the  evening, the other  accused,  namely, Ashish,  Dinesh and Ajay came in a Maruti Car and picked  up the deceased along with Ms.Vanita and took her to Ramtek.  A contract killer is alleged to have been hired by the accused to  murder the deceased.  As the alleged contract killer did not  reach  on that day, the criminal conspiracy hatched  by the  accused could not be implemented.  Again on  13.11.1999 accused  Ms.Vanita  took  the  deceased on  the  pretext  of solemnising  her  marriage  with  the  respondent.   To  the

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misfortune  of the accused, the killing was not accomplished even  on  that day as their car had met with an accident  in which  Ms.Vanita, accused had sustained some injuries.   The task   of  murdering  the   deceased  was  accomplished   on 15.12.1999.   The deceased was inflicted injuries with knife and  stone  and was also strangulated.  In order to  conceal the  identity  of the victim, the accused persons took  away her  purse,  bag and other articles from the dead  body  and later on burnt the same.

   After his arrest the respondent filed an application for bail  in the trial court which was dismissed on 24.4.2000 on@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ finding  that his complicity in the criminal conspiracy  was@@ JJJJJJJJJJJJJJJJJ established.   Being  aggrieved  by the order of  the  trial court,  the  respondent  filed  a  Revision  Petition  under Section  439  of the Code of Criminal Procedure in the  High Court which was allowed vide the impugned order.

   For releasing the respondent on bail, the High Court has ventured to refer to the merits of the case and pre-maturily held  that there was no material on record to show that  the respondent  was guilty of conspiracy, in execution of which, Shubhangi,   once  his  beloved,   was  murdered.    Despite observing   that  the  case   was  based  on  circumstantial evidence,  the High Court did not afford the prosecution  an opportunity  to lead evidence for establishing the existence of  conspiracy  and  wrongly held that it was  difficult  to infer  the  existence of a conspiracy particularly when  the respondent  had  gone  to  Baramati.    The  factum  of  the respondent  going  to  Baramati  was   relied  upon  by  the prosecution  as  one  of the  circumstances  connecting  the accused  with the commission of the crime particularly  when it  was  alleged  that  while at Baramati he  used  to  have telephonic  talks  with the other accused persons about  the alleged  conspiracy.   In the absence of "exact talks",  the High  Court found that the allegation of conspiracy was  not established.   The  Single Judge of the High Court  was  not justified, at the initial stage, to observe:

   "....it  is  difficult to say that after the  conspiracy was  hatched  the  applicant had been to Baramati  and  from there  he  used  to have talks with other accused  on  phone regarding the alleged conspiracy."

   Once  the final charge-sheet has been filed in the trial court,  the  High  Court, under  the  normal  circumstances, should have permitted the respondent to get a verdict of his innocence or involvement from that Court under Chapter XVIII of  the  Code of Criminal Procedure.  No exceptional  ground has  been made out, in the instant case, to depart from such a  usual  established procedure.  The order  impugned  being contrary to law is liable to be set aside.

   Under  the  circumstances the appeal is allowed and  the order  impugned  is set aside.  The respondent would  be  at liberty  to urge grounds, if there is any, for his discharge before  the  trial  court and the trial court shall  not  be influenced  by  any of the observations made by us  in  this order  while  deciding his plea of bail.  We make  it  clear that  no  observation  made by the High Court in  the  order impugned  shall  either  be made a ground in favour  of  the accused for deciding such a plea.

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