Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1778 (BOM)

Shivkamal Sahadev Rajput v. State of Maharashtra

2014-08-08

REVATI MOHITE DERE

body2014
Judgment : 1. Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith with the consent of the parties. 3. By this application, the applicant has impugned the order dated 09.10.2013 passed by the learned Ad-hoc Additional Sessions Judge, Greater Bombay, below Exhibit 5 in S.C.No.269 of 2013, by which the applicant's discharge application came to be rejected. 4. A few facts as are necessary to decide the present application are as under :- According to the prosecution, the complainant Victor Francis Fernandes, who is the husband of the deceased Robertina, had gone out in the morning for purchasing medicines. When the complainant returned home, he found his wife lying in a pool of blood. At the relevant time, the complainant had seen two garbage collectors near the building. However, later on, he found them missing from the spot. Accordingly, an FIR came to be lodged with the Versova Police Station, Andheri(W), Mumbai vide C.R.No.282 of 2012 as against unknown persons alleging offences punishable under Sections 302 and 397 r/w. 34 of the Indian Penal Code. During investigation, three accused came to be arrested i.e. accused No.1 Vishal Ajitsingh Tak, accused No.2, Shivkamal Sahadev Rajput i.e. the present applicant and accused No.3 Vikramsing Palsing Bidlani. The said applicant was arrested on 21.11.2012 on suspicion. 5. Learned counsel for the applicant contended that there is no sufficient ground for proceeding as against the present applicant, inasmuch as, no witnesses have identified the present applicant nor have stated to have seen the present applicant. She submitted that a knife was recovered at the instance of accused No.1 and that certain Gold ornaments were recovered from both accused Nos.1 & 3. In addition to the Gold ornaments recovered from accused No.3, the accused No.3's blood stained clothes were also seized, during investigation. Learned counsel submitted that the brother of the complainant, Vincent Fernandes has identified accused No.3 and the house-hold help, Smt.Rashida Abdul Rashid Shaikh has identified accused No.1. It appears from the statements of the witnesses that there were two persons i.e. accused No.1 and one unknown person. It is submitted that in the identification parade that was held, the present applicant has not been identified by any witness and that only accused Nos.1 and 3 have been identified by the witnesses. It appears from the statements of the witnesses that there were two persons i.e. accused No.1 and one unknown person. It is submitted that in the identification parade that was held, the present applicant has not been identified by any witness and that only accused Nos.1 and 3 have been identified by the witnesses. Ms Shaikh submitted that in the absence of any material as against the applicant, the applicant is entitled to be discharged under Section 227 of the Code of Criminal Procedure Code. 6. Learned APP on the instructions of the investigating officer, Mr. Ashok Pimpale, P.I., Versova Police Station, Andheri(W), Mumbai, who is present in the Court, very fairly states that there is no material qua the applicant and that the material is only as against accused Nos.1 and 3. 7. Perused the charge sheet, more particularly the statements of the complainant, Vincent Fernandes, housemaid Smt.Rashida Shaikh and other witnesses, namely Smt. Rajinder Kaur Singh, Shri Rakeshkumar Kharwal, Shri Walchand Jain and the Medical officer. It is evident from a perusal of the said statements that all the witnesses have stated that there were two persons and the said two persons who have been identified are accused Nos.1 and 3. The present applicant despite being put up in the identification parade has not been identified by any of the witnesses. There is no recovery of any ornaments, articles or blood stained clothes from the present applicant. There is absolutely no material to connect the applicant with the alleged offence. 8. Considering the fact, that there is no material as against the present applicant, it can be said that there are no sufficient grounds for proceeding as against the applicant. 9. Accordingly, the Criminal Application is allowed. Rule is made absolute in terms of prayer clause (ii) and the proceedings, being S.C.No.269 of 2013 pending before the learned Sessions Judge, Greater Bombay, arising out of C.R.No.282 of 2012 of the Versova Police Station, Andheri(W), Mumbai is quashed and set aside and the applicant is discharged from the said case. 10. Parties to act on the authenticated copy of this order.