1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.169 OF 2009 Ramdas S/o.Madina Kale, Age-37 years, Occu-Labour, R/o.Jogeshwari Pargaon, Tq.Aashti, Dist. Beed APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.K.J.Suryawanshi, learned counsel for applicant. Mr.B.J.Sonwane, learned APP for respondent State (CORAM : A.V.POTDAR, J.) DATE : 03/12/2009 ORAL JUDGMENT : 1. By the present revision application, the applicant has challenged the order passed by the Learned Additional Sessions Judge Beed below application Exh.40 in Sessions Case No.37/2003 passed on 07/04/2009 by the Additional Sessions Judge, Beed by which application for discharge u/s. 227 of The Cr.P.C. filed by the present applicant was rejected. 2. Considering the small point involved in the present revision petition, Rule. Rule returnable forthwith. By the consent of parties, the revision application is finally heard at the stage of admission 2 itself. 3. Heard learned counsel appearing for applicant followed by the submissions of learned APP appearing for State. Perused the papers of investigation produced alongwith the charge sheet of which copies were produced before this Court. 4. From perusal of copies of the charge sheet it appears that one Subhash Sadashiv Chavan has lodged complaint in Aashti Police Station about robbery and murder took place at his residential premises in the night between 06/07/2002 and 07/07/2002 at around 2.30 a.m. On the basis of this complaint, an offence was registered against 4 unknown persons on the aforesaid date, for an offence punishable u/s. 394, 302, 457 r/w. 34 of IPC. In connection with the said offence, 4 persons came to be arrested including the present applicant. It appears that after completion of investigation, charge sheet came to be filed in the Court of J.M.F.C. Aashti and after passing necessary committal order, the trial was committed to the Court of Sessions, Beed. 5. It is urged across the bar that out of 4 persons arrested in connection with the said offence, one Prakash Badshah Kale was discharged vide order dated 03/03/2003. 2 other persons were absconded and now only the present applicant is facing the trial. During the course of submissions across the bar, it is urged that perusal of the complaint shows that there was some gold ornaments 3 appears to be stolen during the said dacoity from the premises of the complainant. After arrest of accused, when for considerable period he was in custody of the police, no test identification parade was conducted to identify this accused at the hands of complainant and family members of the complainant or the neighbourers whose statements were recorded during the course of investigation. Even though gold ornaments were stolen during the said dacoity, nothing was recovered at the instance of this applicant accused arrayed as an accused in the said sessions trial. In the premise as there is no evidence against applicant accused, and even after the entire evidence collected during the course of investigation if accepted as it is, even then the charge can not be framed against the applicant, he be discharged. 6. Application is opposed by learned APP appearing for state. On the basis of statement of absconded accused recorded u/s. 27 of The Indian Evidence Act, according to him, the disclosure statement of absconded accused and the recovery at the instance of that accused is going to connect this accused in the present case. 7. Considering these submissions across the bar, first in view of the ratio laid down in the ruling which is yet to be over-ruled in the matter of Pulukuri Kottaya and others versus Emperor, reported in AIR 1947, Privy Council 67, the scope of evidential value of the statement recorded u/s. 27 of The Indian Evidence Act is discussed and the said ratio is laid down still yet to be over-ruled. It is to be 4 noted that the discovery infurtherance of the disclosure statements relates to the offence allegedly committed if established by the author of the statement of that disclosure. No recovery was effected at the instance of this accused. In the premise, first part of the disclosure statement of the co-accused who can be termed as accomplice can not be attributed towards the commission of act as alleged to have committed by the present applicant. In the premise, that statement can not be used against this applicant. If this part of investigation is excluded then, even if the entire case of the prosecution is accepted as it is, that evidence collected during the investigation is not sufficient even to frame charge against this applicant, and if it is so, applicant is entitled for discharge u/s. 227 of Cr.P.C. In the premise, the order passed by the Learned Additional Sessions Judge Beed dated 07/04/2009 is liable to be quashed and set aside. Accordingly the order dated 07/04/2009 passed by the Additional Sessions Judge – 1 Beed in Sessions Case No.37/2003 below Exh.40 is hereby quashed and set aside. The applicant is discharged from Sessions Case No.37/2003. His bail bond stands cancelled. 8. Rule is thus made absolute as indicated above. Revision application stands disposed of accordingly. (A.V.POTDAR, J.) khs/DEC 2009/cri.rev.169-09