..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.376 OF 2008 Mohamed Arshad Tahir Shaikh. ..Petitioner. Versus The State of Maharashtra. ..Respondent. .... Mr.Milan Desai, Advocate for the Applicant Mr.A.S.Shitole, APP, for State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING THE ORDER : 16th October, 2008 DATE OF PRONOUNCING THE ORDER : 26th November,2008. P.C.: 1. Heard the learned Advocate for the Applicant and the learned APP for the State. 2. The applicant is seeking discharge in C.R.No.I-290 of 1990 of Ulhasnagar police station. The said case pertains to Sessions Case No.139 of 2007. The said case is under Sections 302, 307, 333, 353, 147, 148, 149, 120(b) read with 34 of Indian Penal Code. ..(2).. 3. The applicant has preferred an application for discharge before the learned Sessions Judge. The other co-accused had also preferred an application for discharge. The learned Sessions Judge by order dated 8.10.2007 rejected both the applications. Perusal of chargesheet reveals that besides the confessions of the co-accused, there is statement of one Balu Kakade who states that these accused had assembled in the house of accused Pappu Kalani on number of occasions. Anant Mane also states that on the previous day and on the day of incident the accused Mitra @ Sharma had gone to the house of complainant police Inspector Mistry who also was one of the member of the party of these accused and has been prosecuted for the same offences. Apart from this evidence, there is statement of accused Gabriyal @ Baba Moben which is admissible to the extent of discovery of place and who claims that these accused hatched the conspiracy to commit the murder of Anna Shetty. 4. In view of the above, the learned Sessions Judge has observed that there was sufficient material to proceed against the accused persons. Hence, the applications came to be rejected. ..(3).. 5. It is not the prosecution case that the applicant had taken actual part in the incident of murder, but,it is the prosecution case that the applicant had entered into a conspiracy along with main accused Kalani to murder Anna Shetty. Anna Shetty was shot at in the morning of 15.10.1990. Anna Shetty was shot by four persons on a public road. It is not the prosecution case that the applicant was present at that time. 6. Originally the provisions of TADA were made applicable to this case. However, the Apex Court set-aside the provisions of TADA. Hence, the case is now only under the various sections of Indian Penal Code. In such case,obviously, the statement of co-accused cannot be relied upon to convict the accused persons. The statements of accused wherein he implicates the other accused persons cannot be said to be legally admissible evidence and no reliance can be placed on them. Hence, the statement of co-accused Gabriyal cannot be relied upon. 7. As far as the statement of Anant Mane is concerned, he has stated that on the previous day and ..(4).. on the day of the incident accused Mitra @ Sharma had gone to the house of one of the members of the party of the accused persons. The applicant is admittedly not Mitra Sharma and hence as far as the present applicant is concerned, the statement of Anant Mane is of no use to the prosecution. I have perused the statement of Balu Kakade. Balu Kakade has stated that at the time of Assembly Elections in the year 1990 the present applicant along with many others from Bombay used to come and then Pappu, Mitra and Narayan used to chit chat in the office. As far as the present applicant is concerned, this is the only material against the applicant. Thereafter Balu Kakade has stated that Kishore, Baba, Bachhi came from Bombay twice thrice mostly in the night-time and they used to meet Mitra and Pappu at that time Naresh and Narayan used to accompany them. During that period they had arranged 3-4 parties and these persons used to talk some secret things which Balu Kakade could not hear. Thus, it is seen that as far as these parties are concerned where secret things were supposedly discussed, the witness has not stated that the present applicant was present during any of these parties. Thereafter Balu Kakade has stated that on the night prior to the incident of murder a ..(5).. party was arranged wherein Mitra, Pappu and others were present at that time. There is no reference to the applicant being present at the said party. Thus, only portion in the statement of Balu Kakade wherein the name of the applicant is reflected is : "At the time of 1990 Assembly elections Kishore, Baba, Bachhi, Arshad and Richard from Bombay used to come and then Pappu, Mitre and Narayan Kalani used to chitchat in the Office and I used to serve tea etc. to them." Besides this, no other material has been pointed out by the prosecution. Looking to the material on record, I am of the opinion that there is no sufficient material to proceed. Hence, revision application is allowed. The applicant is discharged. Stay to the proceedings before the trial Court is vacated. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)