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2014 DIGILAW 1810 (BOM)

Vipul Rajendranath Tiwari v. State of Maharashtra

2014-08-13

REVATI MOHITE DERE

body2014
Judgment : 1. Rule. Rule made returnable forthwith with the consent of the parties. The learned APP waives service of notice. 2. Heard learned counsel for the parties. 3. The petitioner has impugned the order dated 23.12.2013 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge-1, Pune below Cri. Revn. Appln.No.489 of 2011, rejecting his application, seeking discharge from R.C.C.No.1770 of 2011. The petitioner was arrested by the Deccan Police Station, Pune on 08.03.2011 in connection with C.R.No.19 of 2011, along with co-accused for the alleged offence punishable under Section 379 read with Section 34 of the Indian Penal Code. An FIR was lodged by one Shankar Damodar Kondekar on 28.01.2011 with the Deccan Police Station, Pune as against unknown persons. It is alleged in the FIR that some unknown persons committed theft of five mobiles and cash of Rs.7,000/-. The said theft is alleged to have taken place on the parade ground of Garware college, Karve Road, Pune. After investigation, charge sheet was filed as against the present petitioner and co-accused. 4. Learned counsel for the petitioner contended that there is absolutely no material qua the petitioner to connect him with the alleged offence. He contended that the only evidence as against the present petitioner is the statement of the co-accused Abhishek Mishra, which is clearly inadmissible. He submitted that there is no recovery of any article i.e. either of mobiles or cash at his instance. 5. Learned APP on the instructions of the investigating officer, Mr.N.R. Kenche, API., who is present in the Court does not dispute the aforesaid facts. However, she states that there is a panchanama where cash has been produced by the father of the petitioner to the police. She admits that neither the statement of the father has not been recorded nor is the cash identifiable. 6. Perused the charge sheet. From a perusal of the charge sheet, it appears that there is no recovery of any article i.e. either the mobiles or the money at the instance of the petitioner. It appears that the mobiles have been seized from the house of the co-accused Abhishek Mishra. 6. Perused the charge sheet. From a perusal of the charge sheet, it appears that there is no recovery of any article i.e. either the mobiles or the money at the instance of the petitioner. It appears that the mobiles have been seized from the house of the co-accused Abhishek Mishra. The money which is alleged to have been produced by the father of the petitioner would not in any way prove the case of the prosecution, inasmuch as, neither the statement of the petitioner's father has been recorded nor is the money identifiable, as being that of the complainant. 7. Apart from the confessional statement of the co-accused Abhishek Mishra, which is clearly inadmissible, there is no material to connect the petitioner with the alleged offence and hence, I pass the following order. (i) Accordingly, petition is allowed. The impugned order dated 23.12.2013 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge-1, Pune below Cri. Revn. Appln.No.489 of 2011 is quashed & set aside and the petitioner is discharged from the case i.e. R.C.C.No.1770 of 2011, arising out of C.R.No.19 of 2011 registered with the Deccan Police Station, Pune. (ii) Rule is made absolute in terms of prayer Clause (a). 8. Parties to act on the authenticated copy of this order.