1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.236 OF 2011 Ganesh Namdev Tak Applicant versus The State of Maharashtra Respondent Mr.S.M.Borkar for applicant. Mr.A.S.Shitole, APP for State. CORAM : RANJIT MORE, J. DATE : 8th December 2011 PC : 1. Rule. Rule made returnable forthwith. Heard finally by consent of parties. 2. The above criminal revision application is filed under section 397(1) of the Code of Criminal Procedure, 1973 challenging the order dated 7th December 2010 passed by the learned Additional Sessions Judge, Pune on the application of discharge filed by the present applicant u/s 227 of the said Code in Sessions Case No.30 of 2010. 3. Brief facts for the purposes of disposal of this revision application are as follows. 4. On 22nd December 2006 at about 6.00 p.m. at Wadgaon Rasai, Tal. Shirur, Dist. Pune, decoity has been committed in the jewelry shop of original complainant Ms.Kalpana Vishnu Mundlik. As per the complaint, some 5-6 dacoits committed the robbery in her jewelry shop with the help of wooden sticks and koyta. The dacoits injured her and her husband Vishnu. Upon the complaint of the complainant, Police of Shirur Police 2 Station registered crime No.270 of 2006 under section 395 of Indian Penal Code. 5. The applicant was arrested on 22nd March 2007 by the Jejuri Police in CR No.96 of 2006 registered at Jejuri Police Station. On 29th March 2007 in pursuance of the order of JMFC, Saswad, transfer warrant was issued thereby the applicant was transferred to Shirur Police Station under CR No.270 of 2006 from Jejuri Police Station CR No.96 of 2006. He was remanded to the Magisterial custody till 12th April 2007 and thereafter released on bail. The Police Officials of Shirur Police Station on 21st April 2008 filed a report under section 173 of the Code of Criminal Procedure before the learned JMFC, Ghodnadi against the accused persons including the applicant levelling charges under sections 395, 400 and 412 of the Indian Penal Code. 6. The report dated 21st April 2008 records that the alleged offence has been committed in the jurisdiction of the Court at Ghodnadi at Wadgaon Rasai, Tal. Shirur, Dist. Pune in the jewelry shop of the complainant Ms.Kalpana Mundalik named as Suman Jewelers on 22nd December 2006 at 1800 hours. One of the accused Kailas Chabu Barde and 66 others had entered in the jewelry shop of complainant after pelting stones and injured the complainant and her husband Vishnu Mundlik, witness Ramkrishna Tulshiram Upare by weapons of wooden sticks and sharp koyta and also robbed 880 gms. of golden ornaments and 1 kg. of silver ornaments worth Rs.8.03 lakhs. The accused named in the said crime registered at Shirur Police Station (who are goldsmiths) received the said golden and silver ornaments. 7. Charge under section 395 being exclusively triable by the Court of Sessions, the learned JMFC, Ghodnadi committed the case to the Sessions Court. The applicant thereafter filed an application at Exhibit-10 for discharge under section 227 of the Code. As the said application stood rejected, the applicant filed present revision. 3 8. Mr.Borkar, learned counsel for the applicant submits that the prosecution has failed to supply material evidence against the applicant to relate him in the alleged crime registered at Shirur Police Station. He further submitted that the applicant neither named in the FIR nor any co- accused or witness has cited his name as an accused. He submitted that the only evidence against the applicant is in the form of Muddemal Receipt in which name of the applicant is shown in the column of accused. He further submitted that the Police have prepared a list of jewelery seized from various jewelers and goldsmiths, which was alleged to have been stolen or robbed from the complainant's shop and others. However, this list also does not disclose name of applicant. He lastly submitted that the learned Sessions Judge has rejected his application on wrong premise. There is no evidence of whatsoever nature against the applicant and therefore, the applicant deserves to be discharged of the offence under section 412 of Indian Penal Code. 9. Mr.Shitole, learned APP on the contrary, supported the impugned order. He, however, fairly conceded that there is no recovery from the applicant and no witness/co-accused has named the applicant as an accused. He further submitted that even the remand report also does not show any recovery from the applicant. 10. Having considered the rival submissions and having gone through the impugned order along with charge sheet, I find merit in the revision. The only evidence against the present applicant is in the form of Muddemal Receipt, a copy whereof is annexed at page 188 of the paper book. The Muddemal Receipt shows that PSI Deokar seized and produced 366 gms. of gold ornaments in CR No.261 of 2006 registered by Shrirampur Police Station. There are various ornaments like Ranihar, Mangalsutra, Chain, Zube, Rings etc.. The name of the applicant is written in the column of accused. In fact, it is not the case of the prosecution that the applicant herein is concerned with CR No.261 of 4 2006 registered at Shrirampur Police Station. Page 29 of the revision paper book is the report under section 173 of the Code in respect of CR No.270 of 2006 registered at Shirur Police Station. This report also gives list of the seized jewelery from various jewelers/goldsmiths. The gold ornaments which are seized and produced by Police Sub Inspector Deokar from Shrirampur Police Station are referred at Sr.nos.13 to 16. This list further shows that the ornaments referred therein are seized from Ramchandra Pedgaonkar, Satish Varma, Balasaheb Pandit etc. who are goldsmiths. The report u/s 173 even does not remotely suggest that the jewelery referred therein was recovered from the present applicant. Thus, it is clear that there is no evidence in the form of recovery as against the present applicant. 11. The learned Judge rejected the application of applicant for discharge on following grounds :- (a) the applicant is accused in other crimes also; (b) during the course of investigation it was transpired that the stolen property of dacoity is sold to the applicant; (c) other co-accused are habitual offenders and involved in committing the dacoitees at various places; and (d) statements of other co-accused about selling the property to the main accused. With the help of learned counsel for the parties I have perused the charge sheet. The grounds on which the applicant's application for discharge is rejected, are not sustainable. 12. So far as the first ground that the applicant is accused in other crimes also is concerned, it is factually incorrect. The applicant in paragraph 10 of his application specifically stated that he is discharged from Sessions Case No.187 of 2007 registered at Jejuri Police Station for the offences punishable under sections 395, 397, 109, 120(b) and 412 of 5 Indian Penal Code. Apart from this case no other case is pending against the applicant. This position is even accepted by the learned APP.. 13. So far as second ground namely during the course of investigation it was transpired that the stolen property of dacoity is sold to the applicant is concerned, there is absolutely no evidence that the property which was stolen was sold to the applicant. In fact, the only proof against the applicant is that his name is included in the column of accused in the Muddemal Receipt. The ornaments enlisted in the Mudemal Receipt have been seized from other jewelers and not from the applicant. Therefore, the second ground also cannot be sustained. 14. So far as third ground is concerned namely the other co-accused are habitual offenders and involved in committing the dacoitees at various places is concerned, apparently it has no nexus with the applicant. It is not the case of the prosecution that the applicant is habitual offender. As referred above, the applicant has been discharged from Sessions Case No.187 of 2007. Further, the persons named as habitual offenders are not before me and the fact that they are habitual offenders cannot be a ground to dismiss the applicant's application for discharge. 15. So far as last ground is concerned, I find that the learned APP has fairly stated that none of the witnesses/co-accused have disclosed or attributed any act of the applicant's calling for criminal prosecution. 16. By now it is the settled principle of law laid down by the Apex Court that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. The evidence which was produced by the prosecution against the present applicant, if accepted, then also the accused cannot be held liable for offence under section 412. The 6 prosecution has failed to collect the material on the basis of which a prima facie case against the applicant under section 412 of IPC could be made out to connect him with the alleged crime in any manner. In short, there is no dispute that the applicant is not named in the FIR nor he has been named by any witness/co-accused nor any property is recovered from him. 17. In view of the above discussion it is clear that the learned Trial Judge has committed an error in rejecting the discharge application of the applicant. Accordingly, the impugned order is quashed and set aside. The application below Exhibit-10 is allowed. Rule is made absolute in terms of prayer clause (c). (RANJIT MORE, J.)