CRIMINAL APPLICATION (APL) NO. 1212/2019

22nd January 2020

Petitioner Counsel: Mr. Adwait S. Manohar
Respondent Counsel: Mr. M. K. Pathan
Act Name: Code of Criminal Procedure, 1973

Section :
Section 164 Code of Criminal Procedure, 1973 Section 227 Code of Criminal Procedure, 1973

JUDGEMENT

1. Heard Mr.Manohar, learned counsel for applicant and Mr. Pathan, learned A.P.P. for non applicant-State. Admit. Heard finally by consent of learned counsel for the parties.

2. The present application is filed challenging the order passed by learned Sessions Judge, Yavatmal dated 26.09.2019 below Exh.-38 in Sessions Trial No.49/2019 whereby the learned Sessions Judge rejected the application filed by applicant under Section 227 of the Code of Criminal Procedure for discharging him from the sessions trial.

3. The entire submission of learned counsel for applicant revolves around the fact that the first informant Anjali has given a complete go bye to her first information statement, in her statement recorded under Section 164 of the Code of Criminal Procedure (Cr.P.C). He also submits that the telephonic conversation, which is placed on record in between accused Bhima and the applicant does not implicate him. He, therefore, submits that this is a fit case wherein this Court should exercise inherent powers as well as revisional powers to discharge the applicant.

4. The deceased is Sachin Mangulkar. He is husband of first informant Anjali. The First Information Report (FIR) is dated 30.12.2018. From the FIR it is clear that the deceased was involved in sand business and the present applicant along with Kiran Khadse were also involved in the said business and in fact they were doing the same business in partnership. However, there was some dispute among them. Therefore, the deceased closed down his sand business. It is stated in the report that coaccused Kiran Khadse and the present applicant and one Babu Tayde used to take up quarrels with the deceased. It is stated in the report that on 28.12.2018, there was a serious quarrel in between deceased and Bhima Khade and Gajanan Kumre on account of sand business.

5. The report further states that on the next day on 29.12.2018, her husband received a telephonic call from one Subhsh Solanki. After their telephonic conversation, as per the report, the deceased left his house on the motorcycle; bullet. Thereafter, first informant, her two daughters, sister and her mother in law went in Bolero four wheeler along with their driver; Amit for eating “Chaat”. That time, she noticed presence of her husband at Moha fata. At that time, she noticed presence of coaccused Kiran Khadse, present applicant and co-accused Babu Tayade and as per the FIR, these persons were talking with her husband in a very loud voice. As per the report, thereafter, she along with her companions went for eating chaat and reached to her house at 09.15 p.m. When she was taking a stroll along with her daughter Kasturi, she noticed that her husband Sachin was in an injured condition and was having bleeding injuries and accused Bhima Khade and Gajanan Kumre were assaulting him by means of weapons in their hands. She, therefore, shouted and these persons ran away from the spot.

6. During the course of investigation, statement of the first informant Anjali is recorded before the learned Magistrate under Section 164 of the Cr.P.C. From the said statement, it is clear that she did state before the learned Magistrate that Kiran Khadse, Sachin Mahalle and Babu Tayde were the assailants.

7. According to the learned counsel, this statement is nothing but a total improvement not only in the version but also the names of the assailants.

8. Even as per the FIR, at Moha fata, first informant noticed presence of the applicant along with co-accused. Not only that, she did state in her first information statement that there was a loud talk in between them. Thus, in statement under Section 164 of the Cr.P.C. presence of the applicant is not coming for the first time. It is the submission of Mr. Manohar, learned counsel for the applicant that presence of the applicant at that point of time stands belied by statements of Subahsh Solani and the CDR.

9. Law on question of discharge is well settled. The Apex Court in State of Rajasthan Vs. Fatehkaran Mehdu; reported in 2017 (3) Mh. L. J. (Cri) (SC) 44, in paragraph 26, observed thus:
“26. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.”

10. In view of the law laid down by the Hon’ble Apex Court, at the stage of framing of charge, the Court is not concerned with the proof of allegations rather, it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence or not.

11. At this stage, in my opinion, submission of learned counsel for applicant in respect of variance of the statement of Anjali cannot be considered since it is a matter of appreciation. How much weightage should be given to the evidence of Anjali, the first informant is a matter of trial and only after a full dress trial, it will be open for the learned Judge who will be conducting the trial as to what extent the first informant should be relied upon. However, since name of the present applicant did figure in the statement under Section 164 of the Cr.P.C. as assailant, at this stage, I am afraid that applicant can claim his discharge.
Consequently, the application is rejected.