hvn 1/revn//392.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 392 OF 2011 Hemant Raghunath Gandhi ... Applicant Versus State of Maharashtra ... Respondent Mr. S.R. Chitnis, Sr. Advocate i/by Mr. Ashish Sawant, Advocate for the applicant. Mr. S.A. Shaikh, A.P.P. for State. CORAM : K.U. CHANDIWAL,J. DATED : SEPTEMBER 20, 2011 P.C. A female dead body in mutilated condition was found in the jurisdiction of Hirebaewadi Police station in District Belgaum on 23.2.2009 which gave rise to communication to concerned police. Incidentally missing report about Smt. Priti Pawar was lodged by her mother. The dead body was identified to be of Priti Pawar. Investigation was carried by Kothrud Police station giving rise to C.R. No. 85 of 2009 for the offence under section 302 read with 34 of I.P.C. and 201 of I.P.C. The accused applicant was arrested. 1 hvn 1/revn//392.11 He was released on bail. 2. The learned senior counsel submits that the material in the form of statement of Nilesh Khaladkar dated 3.3.2009 and 11.3.2009 reading from any angle merely demonstrates figment of imagination and would not ultimately culminate in the evidence against the accused applicant Hemant Gandhi. The learned counsel submits that the assertions in the former statement of said Nilesh Khaladkar and in the latter statement are contradicting each other. The last seen theory of Shridhar, another witness, would not relate to the accused/applicant as it indicates a fat person having seen in Alto car with Priti Pawar. The learned senior counsel submits that the law on the point of discharge of accused is well indicated in the matter of Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjayya and Ors. (1990) 4 S.C.C. 76, in the matter of N. GNoorul Huda Maqbool Ahmed Vs. Ramdeo Tygi and Ors. (2011) 7 S.C. 95, in the matter of Yogesh alias Sachin Jagdish Joshi Vs. State of Maharashtra, (2008) 10 S.C.C. 394. He emphasizes on the judgment in the matter of Suresh Budharmal Kalani alias Pappu Kalani Vs. State of Maharashtra, (1998) 7 S.C.C. 337. Niranjansingh's matter, provide clue to the judgment in the matter of Superintendent & Remembrancer of Legal Affairs Vs. Anil Kumar 2 hvn 1/revn//392.11 Bhanja, (1979) 4 S.C.C. 274 : "8. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. MANU/SC/0266/1979 : 1979 CriLJ1390 this Court observed in paragraph 18 of the Judgment as under: The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the CrPC, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of d charge against the accused in respect of the commission of that offence. From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there-from taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." 3. There cannot be quarrel on the legal proposition enunciated by the Hon'ble Superme Court. It also does not require further detailed discussion that the court may for the limited purpose shift evidence as it cannot be expected even at the initial stage to accept all the prosecution state as gospel truth even if it is against the common sense and broad probabilities of the case. 3 hvn 1/revn//392.11 4. In the matter of Noorul Huda (supra), the Apex Court relied by the learned senior counsel are in para 36 and 50. The learned senior counsel referred to para 16 of th judgment of Yogesh (supra). The Apex Court indicated : "15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar v. Ramesh Singh and Prafulla Kumar Samal (supra)." 5. Now reverting to the facts of the present case, the accusations primarily indicate that the offence is under section 302, read with 34 and 201 I.P.C. The statement of said Nilesh point out in unequivocal terms about the presence of accused at the driver's seat while deceased Priti was next to him and allegedly Bhalerao was at the rear side. The witnesses also indicate 4 hvn 1/revn//392.11 that Bhalerao strangulated her. The presence of the accused applicant at the spot and thereafter shifting the dead body from Alto to Inova being so stated by Nilesh Khaladkar at this stage would not mitigate its worth to discard it totally. One should not be oblivious that the accused applicant can even be tried for offence under section 201 of I.PC. even if he is acquitted under section 302 read with 34 of I.PC. It is not the case of no evidence against the accused applicant. The worth of the statement or its genuineness is to be tested on cross examination., Added to it is the statement of Madhukar owner of Alto car, recovery of the said Alto car at the instance of the accused applicant, as referred to in the panchanama page 242. These clues cannot be put to shelves. Primary evidence in the form of statement of Mr. Nilesh at this stage is sufficient to frame charge against the accused applicant. At this stage, it is not required to see that the trial will end in conviction or not. Consequently the contentions seeking discharge and criticism on the observation in the order of the learned Judge is uncalled for. Application lacks merit. Dismissed (K.U. CHANDIWAL,J.) 5