1 Criminal Rev.Appl.No.158 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.158 OF 2011 Abdul @ Bhayyu Abbas Khan Pathan, Age-23 years, Occu-Labour, R/o.Near Municipal School No.4, Ward No.1, Shrirampur, Tq.Shrirampur, Dist.Ahmednagar APPLICANT (Original accused no.4) VERSUS The State of Maharashtra Through Shrirampur City Police Station, Ahmednagar, Dist. Ahmednagar RESPONDENT Mr.S.S.Deshmukh, learned counsel for the applicant. Ms.Y.M.Kshirsagar, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 15/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally at this stage by consent of learned counsels for the parties. 2. Challenge in this criminal revision application is in respect of rejection of discharge application filed by the present applicant u/s. 227 of the Cr.P.C. in Sessions Case No.24/2010 on the file of Additional Sessions Judge, Shrirampur by its order dated 2 Criminal Rev.Appl.No.158 of 2011 27/05/2011. 3. I have heard learned counsel for applicant and learned A.P.P. for State. Perused the record made available alongwith charge sheet in respect of Sessions Case No.24/2010. Present applicant is original accused no.4 in the said Sessions Case. 4. Brief facts of the case are as under : In the night of 08/01/2010, deceased Ayub Papabhai Shaikh, as usual, visited the handcart of one Manoj Gupta, who used to sell snacks. He take some water and when he was present near the handcart, 5 persons came on 2 motor-cycles. They blocked the activities of Ayub Shaikh. Out of those 5 persons, 2 were armed with pistol. Out of those 2 persons, one person fired on the belly of Ayub Shaikh while the another fired on head and shoulder of the deceased. 3rd person was threatening to the persons in that area to close their shops and to ran away from the spot. Remaining 2 were guarding the activities of others. Then all those 5 persons left the spot. After the culprits left the spot, Manoj Gupta had been to Shrirampur Police Station, where he lodged complaint in the early hours of 09/01/2010. On the basis of his complaint, an offence came to be registered at Crime No.8/2010 for an offence punishable u/s. 302, 143, 147, 148, 149, 504, 506 r/w. 120(B) and 34 of the IPC, also u/s. 3(25) of the Arms Act and u/s. 37(1)(3) r/w. 135 of the Bombay Police Act. Complainant Manoj Gupta identified 2 persons 3 Criminal Rev.Appl.No.158 of 2011 out of those 5, who came at the spot on 2 motor-cycles. Present applicant came to be arrested on 14/01/2010. Deceased succumbed to injuries at the spot itself. During the investigation, test identification parade was held and statements of certain witnesses were recorded including the supplementary statement of complainant Manoj Gupta on 25/01/2010, one Ayub Haji Abdul Husen, a transporter in the said area and the employees working in his office, but they have stated only about the date of incident, and not identified the applicant and others, but disclosed their names in their supplementary statements recorded on 25/01/2010, During the test identification parade, some of the culprits were identified, but some were not. Further to the completion of investigation, charge sheet came to be filed in the Court of J.M.F.C. Shrirampur, who, after passing committal order, committed the case to the Sessions Court. At the time of framing of charge, an application was moved u/s. 227 of the Cr.P.C., which came to be rejected by the Court below on 27/05/2011, hence the applicant is before this Court. 5. During the course of submissions across the bar, learned counsel for applicant emphasizes mainly on 3 grounds. First, name of the present applicant is not mentioned in the FIR, so also in the statements of witnesses recorded on 09/01/2010. Second, this applicant was arrested on 14/01/2010. Test identification parade was conducted thereafter and supplementary statements of witnesses were recorded on 25/01/2010, in which those witnesses 4 Criminal Rev.Appl.No.158 of 2011 have not disclosed that they identified this applicant in test identification parade, hence disclosure of name of the applicant in the supplementary statement of complainant and others is highly improbable and creates a doubt and lastly, nothing was recovered at the instance of present applicant, hence according to learned counsel for applicant, applicant is entitled for discharge u/s. 227 of the Cr.P.C. as prima facie there is no evidence against this applicant to frame charge. 6. Per contra, learned A.P.P. appearing for State supports the order passed by the Sessions Court dated 27/05/2011. 7. The parameters about as to when the culprit is entitled for discharge are led down in the matter of Govind Sakharam Ubhe Versus State of Maharashtra, reported in 2009(3) Bom.C.R. (Cri.) 144, in which, Division Bench of this Court has observed in para no. 25 as follows : The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of section 227 of the Code, the Court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The Court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding 5 Criminal Rev.Appl.No.158 of 2011 against him. The Court’s enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquriy is not permissible, the Court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross -examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of section 227 of section 228, the scales as to the guilt or innocence of the accused are even then the Court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then the Court will proceed to frame the charge. But if two views are possible and the Court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the Court will be within its right to discharge the accused. Suspicion has to b strong and grave suspicion leading the Court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the Court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting 6 Criminal Rev.Appl.No.158 of 2011 a trial. Probative value of the material cannot be gone into at that stage. 8. It is observed in the matter of Niranjansing versus State of Maharashtra, AIR 1990 SC 1692 by the Apex Court that the evidence collected during the investigation, statements of witnesses recorded during the investigation need not be evaluated whether they are sufficient to convict or acquit the accused, but the evidence collected during the investigation required to be evaluated at the time of framing of charge as to whether this evidence is prima facie sufficient to frame charge against the culprit. In such situation, it is observed that the charge to be framed. Apex Court further observed in the said rulling that if on appreciation of the evidence collected during the investigation and even accepted as it is, without the test of cross examination, even not sufficient to disclose any offence, then these are the cases where the Trial Court need not direct the culprit to face the trial, but to discharge him from the proposed charges. In the light of this legal preposition and on perusal of the evidence collected during the investigation, it reveals that the incident in question had occurred in the late night of 08/01/2010, around 11.00 a.m. The complaint was lodged by Manoj Gupta, in whose presence the incident had occurred, but he was able to identify only 2 persons who have actually fired on the deceased. He has also described the role played by other accused that they are trying to create terror and they are asking the people to close the shops. No doubt, remaining 3 7 Criminal Rev.Appl.No.158 of 2011 persons were not known to the complainant nor to the other persons. In the initial statements, witnesses have disclosed that they are not knowing the names of those persons, but they will be in a position to identify those persons, if shown in future. It appears that after the arrest of applicant and others, they are introduced in test identification parade. Supplementary statements of witnesses were recorded after about 10 days and they disclosed in their supplementary statements that the present applicant is one of the culprit out of those 5 persons, who have actually participated in murder of Ayub Shaikh. 9. At this juncture, I have to bear it in mind the legal preposition in respect of offence of criminal conspiracy as it is settled that criminal conspiracy never be hatched in the broad day light, but to be inferred from the circumstances and instances brought on record. At this juncture, from the statements of complainant and others, it is made clear that the present applicant was one of the culprit out of the 5 persons, who came on 2 motor-cycles and participated in the murder of Ayub Papabhai Shaikh. Considering this aspect, it reveals that there is involvement of the present applicant in the murder of Ayub Shaikh. Case is not made out to discharge the applicant u/s. 227 of the Cr.P.C. by interfering in the order impugned passed by the Court below. 10. In the result, application stands dismissed. Rule stands 8 Criminal Rev.Appl.No.158 of 2011 discharged. It is hereby made clear that observations made in this order are prima facie and the learned Lower Court, not to influence with these observations during the trial. (A.V.POTDAR, J.) khs/SEPT.2011/cri.rev.158-11