* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 430 OF 2008 Shri.Kisan Chandrakant More .....Applicant V/s. State of Maharashtra ......Respondent ======== Mr.Uday Warunjikar, Advocate for Applicant. Mr.Y.S.Shinde, APP for State-respondent. Coram : Smt. R.P.SondurBaldota, J. Dated : 29 th July, 2009. PC :- 1. Heard counsels for both sides. 2. The applicant is accused in Sessions Case No.377 of 2001. He had filed an application for discharge being the application at Exhibit-118. That application was rejected by the trial court by its order dated 28th January, 2008. Being aggrieved by the order, the applicant has filed the present revision application. 3. The case of the prosecution stated in brief is that one Bahya alias Kamlakar Kisan Bodke and others assaulted one * 2 * Pradeep Keshav Sonawane, on 15th August, 1996. As a result of the injury suffered in the assault Pradeep Sonawane died on 21st August, 1996. The applicant alongwith the other co-accused was arrested and chargesheeted under Section 302, 120(B), 34 Arms Act, 3(25), (26) read with Section 135 IPC of the Bombay Police Act. 4. In his application for discharge, the applicant contended that there is no material whatsoever against him on record to connect him to the offence alleged. As against this, it is contended by the prosecution, that the material in record indicates prima-facie involvement of the applicant and further in view of charge under Section 120B IPC, the prosecution should be afforded opportunity to put the case against the applicant on merit at the time of trial of the Sessions Case. 5. The material relied upon by the prosecution against the applicant is (i) statements of accused Kamlakar and accused Kirit at whose instance some discovery was made and (ii) statements of witnesses Shailesh Chavan, Prakash Pawar, Vikas Gade. The statements of co-accused Kamlakar and Kirit cannot be read by the court to find out whether prima-facie case is made out against the applicant. Hence, these statements go out of consideration. That leaves us with the statements of the three witnesses named above. Shailesh Chagan Chavan, stated that he * 3 * had seen the applicant in the house of Umesh in House No.678, Ganesh Peth, 2nd Floor alongwith three other persons on 12th August, 1996 i.e. three days prior to the date of the incident. Prakash Shankar Pawar stated that he had served tea on 13th August, 1996 at the house of Ganesh, where the applicant was present. Vikas Maruti Gade claimed to have seen the applicant in the building at Ganesh Peth, Sanjay Narayan Vetal, Yeshwant Lavne. All these witnesses had seen the applicant in the building at Ganesh Peth which is far away from the place of the incident. These witnesses are supposed to have identified the applicant during the identification parade. The purpose of identification stated in their statement recorded after the identification, in no way connects the applicant to the offence alleged. It merely establishes presence of the applicant at the building at Ganesh Peth at Pune. While accepting this position, the learned trial judge has however felt that it is desirable to ask the accused to face the trial for the reason that it may be possible for the prosecution to connect the applicant to the offence. The reason given is strange, since there is no material whatsoever to connect the applicant to the offence alleged, it will be against the interest of justice to make him go through the rigours of trial. In the circumstances, the impugned order cannot be sustained. The application is * 4 * allowed. The impugned order dated 28th January, 2008 is set aside. The application filed by the applicant at Exhibit-118 in Sessions Case No.377 of 2001 is allowed. The applicant is discharged from Sessions Case No.377 of 2001. [Smt. R.P.SondurBaldota, J]