( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.554 OF 2007 CRIMINAL REVISION APPLICATION NO.554 OF 2007 CRIMINAL REVISION APPLICATION NO.554 OF 2007 Shri Manoj Chhagan Salunke .. Petitioner. Versus The State of Maharashtra .. Respondent. Ms.Revati Mohite-Dere for the petitioner. Mr.K.V.Saste, A.P.P. for State. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 25th April, 2008. DATED : 25th April, 2008. DATED : 25th April, 2008. P.C.: P.C.: P.C.: 1. Heard Ms.Revati Mohite-Dere for the petitioner and Mr.K.V.Saste, A.P.P. for the State of Maharashtra. 2. The petitioner is styled as an accused in Sessions Case No.377 of 2001. This Sessions Case is presently pending before the learned Ad-hoc Additional Sessions Judge, 11th Court, Pune (hereinafter referred to as the learned "Trial Judge"). The petitioner Manoj Salunke filed a discharge application being application at Exhibit-106. The said application was heard and decided by the learned Trial Judge. The ( 2 ) learned Trial Judge by his Order dated 20.8.2007 rejected the application of the petitioner for discharge. The petitioner was aggrieved by this Order dated 20.8.2007 and that is how, he has filed this revision. 3. The prosecution case in gist is that certain persons by name Baba alias Babya Bodke and others assaulted one Pradeep Sonawane on 15.8.1996 and as a result of the injuries suffered in the assault, the said Pradeep Sonawane succumbed to death on 21.8.1996. The petitioner was also arrested in connection with the said incident being incident covered by C.R.No.295 of 1996 of Deccan Gymkhana Police Station, Pune on account of death of Pradeep Sonawane, initially charged of Section 307 r/w. Section 34 of I.P.C. was converted to charge under Section 302 of I.P.C. 4. By filing the application for discharge under Section 227 of Cr.P.C., the petitioner contended that there is no material whatsoever against the petitioner and the petitioner has been arraigned as an accused as he has been a relative of Umesh Chavan, who is also co-accused. The learned Trial Judge considered the application of the petitioner and rejected the same. In his judgement, the learned Trial Judge referred to statements of one Vilas Maruti Gade and Rajesh Mahadev ( 3 ) Bhange alias Raju Batata and has treated that those statements make out a prima-facie case against the petitioner and as such rejected the application for discharge. 5. At the hearing of this petition, , learned A.P.P. Mr.Saste in fairness conceded that the statement of Vilas Gade as well as statement of one Shailesh is the only material which can be read by the Court for the purposes of arriving at a decision as to whether a prima-facie case is made out. It is to be noted that the learned Trial Judge referred to the statement of Rajesh Bhange. Before this Court, the statement of Rajesh Bhange was annexed as a part and parcel of the charge-sheet. When it was brought to the notice of this Court that Rajesh Bhange is an accused in the Sessions Case, this Court refused to look into the statement of the said Rajesh Bhange because the said statement appears to have been recorded by the police in the course of investigation and the said statement could not be read by any Court whatsoever as being a statement made to a police in course of investigation. The impugned order clearly makes a reference to the statement of Rajesh Bhange as the one which is used by the learned Trial Judge to hold that a prima-facie case is made out against the petitioner. This exercise carried out by the learned ( 4 ) Trial Judge is patently erroneous and it is difficult to understand as to in what circumstances the learned Trial Judge gave weightage to the statement of Rajesh Bhange as a statement to be read for the purposes of deciding as to whether a prima-facie case is made out against the petitioner, particularly when the learned Trial Judge was fully aware of the fact that Rajesh Bhange was an accused before him. Hence, reference to the statement of Rajesh Bhange in the impugned judgement will have to be kept away and if that is so, the reference to the statement of Mr.Vilas Gade as the only material against the petitioner will have to be seen and appreciated. 6. With the assistance of learned Advocate Ms.Revati Mohite-Dere appearing for the petitioner and Mr.K.V.Saste, A.P.P. for State, I have perused the statement of Vilas Gade and a close perusal of the said statement only goes to show that Vilas Gade has stated that the present petitioner happens to be a relative of Umesh Chavan, who was also an accused before the learned Trial Judge. Except this fact, there is no material whatsoever coming forth through the statement of Vilas Gade and, therefore, there is no question of the prosecution having made out a prima-facie case on the basis of statement of Vilas Gade. In the circumstances mentioned aforesaid, there ( 5 ) is no material whatsoever on the basis of which, it can be observed that the prosecution has been able to make out a prima-facie case against the petitioner so as to implicate the petitioner in the Sessions Case which is presently pending before the learned Trial Judge. If this be so, the discharge application of the petitioner will have to be granted by setting aside the impugned order dated 20.8.2007. 7. My attention was drawn by the learned A.P.P. Mr.Saste for State to the statement of one Mr.Shailesh being principal statement recorded on 17.8.1996 and further statement recorded on 30.9.1996. According to the learned prosecutor before this Court, this statement also makes out a prima-facie case against the petitioner though there is no reference in the impugned order to this statement. Hence, I have with the assistance of learned Advocates on both the sides, perused the said two statements of Shailesh and on going through the said statement, I am inclined to observe that there is no material coming forth through the statements of Shailesh so as to say that a prima-facie case against the petitioner is made out. If something could be observed, it may at the most go to show that the present petitioner used to be friendly with the persons such as Baba alias Babya Bodke or even Umesh Chavan and nothing beyond that. ( 6 ) In my view, this aspect even taken as it is, cannot be used against the petitioner to hold that a prima-facie case is made out against the petitioner. 8. In view of the aforesaid observations, the petitioner’s discharge application ought to be granted. Hence, the impugned order passed by the learned Trial Judge will have to be set aside and the revision will have to be allowed and appropriate orders will have to be passed thereby discharging the petitioner from the Sessions Case No.377 of 2001. 9. For the reasons mentioned aforesaid, I pass the following order :- a) The order dated 20.8.2007 passed the learned Ad-hoc Additional Sessions Judge, 11th Court, Pune below Exhibit No.106 in Sessions Case No.377 of 2001 is set aside. Application at Exhibit No.106 filed by the petitioner being discharge application is granted. Accordingly, the petitioner stands discharged from Sessions Case No.377 of 2001. His bail bond stands cancelled. 10. This Court is informed that the trial of the Sessions Case No.377 of 2001 is posted for framing of ( 7 ) charge before the learned Ad-hoc Additional Sessions Judge, 11th Court, Pune on 28.4.2008 and that the P.S.I. Mr.Nalawade attached to D.G.P. is present in Court to instruct the A.P.P. This order is passed in the presence of the said P.S.I. Mr.Nalawade, who is requested to inform the concerned Court that this Court has passed an order discharging the present petitioner Manoj Chhagan Salunke from Sessions Case No.377 of 2001. This order is also passed in presence of learned Advocate appearing for the petitioner, who is also requested to inform her counter part at Pune about the passing of the order. 11. Criminal Revision Application No.554 of 2007 stands disposed off in the above terms. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)