1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Revision Application No.468 of 2004 Deepak Janardan Pandey & ors. .. .. Applicants v/s. The State of Mah. .. .. .. Respondent Mr.M.K. Kocharekar for Applicants. Mr.Ashok J. Pandey, Respondent No.2, in person, present. Mr.Shailesh More, APP for State. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 13th November 2009 P.C. : 1.This Revision is filed against the order dated 22.9.2004 in Sessions Case No.2 of 2003. The Criminal Application is for discharge of the accused. The criminal complaint was filed in the Court of the learned Judicial Magistrate, First Class, No.4, Ulhasnagar under CC No.455/2001 by the complainant against his family members. Accused No.1 is his brother. Accused No.2 is the wife of the brother. Accused No.3 is the mother of the complainant as well as accused No.1. Accused Nos.4, 5 and 6 are the in- laws of accused No.1 and accused No.7 is the family doctor. 2.It is the case of the complainant that all the 7 accused have murdered his father. The father was 78 2 years at the time he expired. He had retired about 2 decades before. He lived with accused Nos.1, 2 and 3. The complainant was called to the house before the funeral. 3.The complaint shows the statements of the complainant, his wife and daughter. It is his case that some froth was coming out of the mouth of his father s dead body and hence, he had suspicion that he was murdered. The cremation of his father has taken place. No Inquest Panchanama has been drawn since no complaint was made to the Police in time. No postmortem report is produced. 4.Upon the private complaint filed by the complainant, the learned Magistrate passed an order for investigating the case under Section 156(3) of the Criminal Procedure Code. The Police have recorded the statements of several neighbours. I have gone through the statements. Each of the neighbours has stated that there was no froth, that the deceased died a natural death and that he lived with accused No.1 peacefully during his life time. 5.What is material to note is a notice sent by the complainant to his brother on 21.3.2001. The notice mentions about the apprehension of the complainant that 3 a Police action was going to be brought by the accused against him. The complainant has made an allegation that certain movable properties of the father have come to be misappropriated by accused No.1. He claims articles in certain two Banks Lockers i.e. in State Bank and Canara Bank. In the penultimate paragraph of the notice, he has threatened his brother accused No.1 thus : If I do not get anything I will not allow you to enjoy a single pai of the above-said amount. The complaint further mentions about the income-tax raid that he proposes to levy on the property of accused No.1, which he has inherited from his father. 6.In a legal notice sent by him through the Advocate to accused No.1 on the next day, he has claimed movable and immovable properties of his father. 7.In reply to the notice, he was informed of a Will left by his father. I have gone through the contents of the Will. The father had two immovable properties being one house and one flat. The father has bequeathed the larger immovable property being the house (I am told it is about 1000 sq. ft.) to the complainant himself 4 since the complainant was residing therein during the life time of the father. The father has bequeathed the smaller flat (I am told it is about 500 sq. ft.) to accused No.1 since accused No.1 was residing therein along with the parents and his family. The father has bequeathed the movable properties being his FDRs and cash in banks to his wife, accused No.3 in the complaint, for her to be used during her life time and thereafter to be shared between the two brothers. Consequently, the case of the complainant that his father could have been murdered upon the motive that accused No.1 and his family wanted to take the properties of the father exclusively, does not stand to reason. 8.It would be a futile exercise to allow the complainant and his family members only to lead evidence in view of the neighbours oral evidence and in the absence of absolutely any other independent corroborative evidence. 9.Consequently, it is seen that the order refusing discharge suffers from material irregularity as the learned Judge has failed to consider that even a prima facie case is not made out through any independent witness or any corroborative evidence. Hence, the impugned order is set aside. The Discharge Application 5 filed by the accused is allowed. All the accused are discharged. 10.The Criminal Complaint itself is disposed of accordingly. (SMT.ROSHAN DALVI, J.)