{1} Cri. Application No.1983/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1983 OF 2011 Dattatraya Ganpatro Kulkarni APPLICANT Age-45 years, Occ-Agri R/o Jagji, Tq & Dist-Osmanabad VERSUS 1. The State of Maharashtra RESPONDENTS 2. Dnyanoba Rambhau Sawant Age-60 years, Occ-Agri. R/o Jagji, Tq & Dist-Osmanabad ....... Mr.S.J..Salgare with Mr.Satej Jadhav h/f Mrs.S.S.Jadhav, Advocate for the applicant Mrs.Yogita M.Kshirsagar, APP for respondent State Mr.M.A.Tandale, Advocate for respondent No.2 ....... [CORAM : A.V.POTDAR, J.] DATE: 26 th August 2011 ORAL JUDGMENT: 1. By the present application, original accused No.4 in Sessions Case No.10/2011 pending on the file of Additional Sessions Judge, Osmanabad, has approached this Court seeking discharge from the said Sessions Case, after his application for {2} Cri. Application No.1983/2011 discharge came to be dismissed by the trial Court vide order dated 13.04.2011. 2. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, this petition is heard finally at the stage of admission. 3. Record reveals that on 19.06.2010 son of the complainant was assaulted by the accused persons and while he was being shifted to the hospital, he succumbed to the injuries. Accordingly, report came to be lodged in Dhoki police station pursuant to which an offence at Crime No.53/2010 came to be registered against the accused persons including the present applicant. It appears that on 21.06.2010, a supplementary statements of the complainant as well as Rameshwar, eye witness, came to be recorded. After completion of the investigation, chargesheet was filed against the accused and after committal of the case to the trial Court, an application came to be moved by the applicant seeking discharge from the said trial, which came to be dismissed, which is impugned in the present application. {3} Cri. Application No.1983/2011 4. Learned counsel for the applicant urged that perusal of the statements, recorded during the investigation nowhere disclose presence of the applicant at the place of offence at the relevant time and hence the applicant cannot be arrayed as accused for the offence punishable u/s 143, 148, 149 r/w 302 and 120 B of the Indian Penal Code. It is further urged that in the supplementary statement there is reference that the applicant used to visit the house of the accused and they used to talk something for which the complainant suspected that they hatched conspiracy to commit the offence, which is not sufficient to frame charge against the applicant for the said offence. In the premise, it is prayed to discharge the applicant from the said Sessions Case. It is also urged that the trial court has committed an error in the impugned order that charge can be framed even on suspicion. Hence, it is prayed to allow the application and discharge the applicant. 5. Learned APP for respondent State as well as learned counsel for respondent No.2 supported the findings recorded by the trial court in the impugned order and prayed for dismissal of {4} Cri. Application No.1983/2011 the application. 6. Division Bench of this Court, in the matter of “Govind Sakharam Ubhe V/s State of Maharashtra”, 2009(3) Bom.C.R. (Cri.) 144 with reference to the judgment of the Apex Court in “Niranjansing Karamsing Punjabi V/s State of Maharashtra” AIR 1990 SC 1962 has observed thus-: “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 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 {5} Cri. Application No.1983/2011 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 a trial. Probative value of the material cannot be gone into at that stage.” 7. The Apex Court has given certain parameters and guidelines to frame charge. The Apex Court has observed that the evidence collected during the investigation not to be evaluated by the court framing the charge from the angle that whether it is sufficient to hold the accused guilty of the offence charged or to be acquitted. It is further observed by the Apex Court that though accepting the evidence collected during the investigation as it is yet is not sufficient to frame charge or does not disclose prima facie commission of offence, then the accused is entitled for the discharge as he need not be compelled to face the ordeal of the trial unnecessarily. {6} Cri. Application No.1983/2011 8. On perusal of the entire evidence collected during the investigation, it appears that only an incriminating evidence against the applicant is in the supplementary statement of the complainant recorded on 21.06.2010 wherein there is passing reference that sometime the applicant used to visit the other accused and they used to talk something and they used to stop when they see the complainant passing by the side. On the basis of this evidence, no inference can be drawn that there was an agreement between accused to commit any illegal act or to do legal act by illegal means, which constitute an offence punishable u/s 120 B of the Indian Penal Code. Other than this, there is no any evidence against the applicant. In the premise, merely because the complainant raised some suspicion is not sufficient to frame charge against the applicant. Apparently, the papers of investigation are not considered by the trial court from this angle and came to a wrong conclusion that the evidence on record is sufficient to frame charge. In the premise, the impugned order requires to be quashed and set aside and the applicant deserves to be discharged from the said Sessions Case. {7} Cri. Application No.1983/2011 9. Consequently, the application is allowed. The applicant is discharged from Sessions Case No.10/2010 pending on the file of Additional Sessions Judge, Osmanabad. The bail bond of the applicant stands cancelled. Rule made absolute as indicated above. [A.V.POTDAR, J.] drp/B11/criapln1983-11