2009 ALL MR (Cri) 2670
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.Y. GANOO, J.
Mrs. Sunita Siddharth Thool Vs. State Of Maharashtra
Criminal Revision Application No.122 of 2009
26th August, 2009
Petitioner Counsel: Mr. R. M. DAGA
Respondent Counsel: Mr. D. M. KALE
Criminal P.C. (1973), S.227 - Penal Code (1860), S.302 - Discharge of accused - Applicant was not present in the house when deceased was found hanging by rope - Charge-sheet not even remotely suggesting even prima facie involvement of applicant - Applicant is entitled to be discharged. (Paras 5, 7, 8)
2. The applicant is sister of one person by name Rajesh Ramteke. The said Rajesh Ramteke got married to one lady by name Vaishali. The applicant is resident of Delhi. On the basis of charge-sheet, it appears that relations between the said Rajesh and Vaishali were not good and one finds allegations against said Rajesh and his relatives including the applicant that Rajesh, applicant and other relatives used to inflict cruelty upon said Vaishali. It is seen that the First Information Report came to be filed by father of said Vaishali namely Ramdas and that is how the investigation was initiated. The said F.I.R. mainly deals with inflicting cruelty upon Vaishali. It is also stated in the F.I.R. that all these relatives including the applicant were responsible for the death of said Vaishali. Said Vaishali was in the house on 15.06.2008 and according to the prosecution, through witness by name Mangala, it is sought to be suggested that the said Rajesh caused death of Vaishali by hanging her to rope. The investigating agency has filed charge-sheet under Sections 302, 408 read with Section 34 of the Indian Penal Code. The applicant filed an application under Section 227 of the Code of Criminal Procedure in Sessions Trial No.401/2008 for discharge from the said trial pending before the learned Ad hoc Additional Sessions Judge-6, Nagpur (hereinafter referred to as learned 'Additional Sessions Judge'). The said application came to be rejected and that is how the applicant has filed present application.
3. I have heard learned Advocates for both the sides. The learned Advocate Mr. Daga submitted that the learned Additional Sessions Judge erred in not discharging the applicant at least with reference to charge under Section 302 of the Indian Penal Code as according to the learned Advocate Mr. Daga, there is no material whatsoever disclosed in the charge-sheet that the applicant was responsible for murder of said Vaishali. He submitted that taking the charge-sheet as it is, there are no allegations to state that the applicant participated in the act of causing death of Vaishali on the date that is on 15.06.2008. He prayed that the applicant be discharged from the offence punishable under section 302 of the Indian Penal Code.
4. The learned A.P.P. Mr. Yengal appearing on behalf of the State tried to support the view taken by learned Additional Sessions Judge by submitting that the learned Additional Sessions Judge has considered the entire record and has given prima facie finding and, therefore, this Court should not interfere in the said order.
5. I have considered the entire charge-sheet and on consideration of the same, I am inclined to accept the arguments advanced by learned Advocate Mr. Daga that there is no material whatsoever even prima facie to come to the conclusion that the applicant has committed offence punishable under Section 302 of the Indian Penal Code. Said Vaishali was alive till afternoon of 15.06.2008 and Mangala, one of the witnesses, has seen Vaishali alive till about 1.30 p.m. Mangala happens to be the neighbour of said Rajesh as well as Vaishali and she had noticed quarrel between Rajesh and Vaishali in the afternoon at about 1.30 p.m. She treated the said quarrel as quarrel between husband and wife and did not pay any serious attention to it. Said Rajesh is said to have told Mangala that Vaishali has managed to get herself strangulated. It is at that point of time the said lady reached the house of Rajesh and noticed that Vaishali was hanging. If the statement of Mangala is perused, it is clear that on 15.06.2008, the present applicant was not in the house and, therefore, she will not be able to point out any overt act to the applicant with reference to the charge under Section 302 of the Indian Penal Code. The learned A.P.P. Mr. Yengal, on the basis of the charge-sheet could not place before the Court any material even prima facie to show that the applicant is remotely concerned with the charge under Section 302 of the Indian Penal Code. Hence, I am inclined to observe that the applicant is entitled to get order of discharge so far as charge under Section 302 of the Indian Penal Code.
6. I have perused impugned the judgment. There is some reference to charge under Section 306 of the Indian Penal Code and some discussion is made by learned Additional Sessions Judge in the following terms "So after recording oral evidence and the facts would be more clear and at this stage, it cannot be said that there is no possibility of conviction of Accused No.4 also for the offence under Section 302 or 306 of I.P.C. If the prosecution will succeed to prove after having produced oral evidence, the offence under Section 306, I.P.C. then certainly Accused No.4 will be liable as an abettor. So the application for discharge is not tenable & liable to be considered at this stage".
7. After having considered the charge-sheet, I am unable to understand what was the occasion for learned Additional Sessions Judge to make the aforesaid comment. When an application for discharge was made, it was necessary for the learned Additional Sessions Judge to peruse entire charge-sheet and ascertain whether the case is made out against the applicant and if yes for what offence. What is to happen after recording of evidence was something, which was not required to be mentioned by learned Additional Sessions Judge. Thus, this is a case where one can observe that learned Additional Sessions Judge did not apply his mind properly on the application for discharge which came to be filed before him.
8. In substance, the applicant has been able to make out a case for discharge and no charge can be framed against her so far as Section 302 of Indian Penal Code is concerned and that is how she is required to be discharged so far as Section 302 of the Indian Penal Code is concerned.
For the reasons mentioned aforesaid, I pass the following order.
The applicant is discharged so far as Section 302 of the Indian Penal Code is concerned from Sessions Trial No.401/2008 presently pending on the file of learned Ad hoc Additional Sessions Judge-6, Nagpur which is arising out of First Information Report No.194/2008 of Gittikhadan Police Station, Dist. Nagpur concerning Charge-sheet No.302/2008.
Rule made absolute accordingly.