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2014 DIGILAW 1935 (BOM)

Vijay Ramchandra Vaity v. State of Maharashtra

2014-09-03

ABHAY M.THIPSAY

body2014
Judgment : 1. The applicant is one of the accused - the accused no.5 -in Sessions Case No.806 of 2010, pending before the Court of Sessions at Mumbai. The applicant made an application for discharge before the trial Court contending that there were no grounds for proceeding against him. The learned Additional Sessions Judge by an order dated 27th September, 2013, rejected the applicant's application for discharge. Being aggrieved by the said order, the applicant has approached this Court by filing the present Revision Application. 2. Apart from the applicant, there were, originally, four other accused in the said case. One of the accused - Vijay Puradkar (accused no.4) has, however, been discharged by the Court under the provisions of Section 227 of the Code of Criminal Procedure. 3. The case against the applicant and other accused is in respect of an offences punishable under Section 302 of the IPC read with Section 34 of the IPC and 120B of the IPC, as also the offence punishable under Section 135 of the Maharashtra Police Act. 4. In brief, the case of the investigating agency is as follows. That, one Naresh Vaity -cousin of the applicant - was murdered on 28th July, 2010. The investigation that was carried out, revealed that he had been murdered in pursuance of a conspiracy that had been, allegedly, hatched between the applicant, co-accused Vivek Vaity (accused no.1), real brother of the applicant and cousin of deceased Naresh - one Sanket Pacharne (accused no.2), one Avinash Savan (accused no.3) and one Vijay Puradkar (accused no.4). That, there was some family dispute between the applicant and the deceased. That, the applicant and the said Vivek Vaity (accused no.1) had a grievance against deceased Naresh, as according to them, they had not received their legitimate shares in the ancestral family property. 5. It is clear form the prosecution case itself, that the act of physically assaulting the deceased has not been attributed to the present applicant. That act has been attributed to the accused no.2 Sanket Pacharne and accused no.3 - Avinash Savan. 6. The learned counsel for the applicant submitted that the applicant had sufficient material available with him to show that he was not present at the scene of the offence. That act has been attributed to the accused no.2 Sanket Pacharne and accused no.3 - Avinash Savan. 6. The learned counsel for the applicant submitted that the applicant had sufficient material available with him to show that he was not present at the scene of the offence. According to him, there is sufficient and satisfactory material to indicate that the applicant, on the day of the incident was already far away from Mumbai i.e. at Leh Ladakh. However, considering the nature of the allegation against the applicant, namely : that he is a conspirator, I am not inclined to give much importance to this aspect of the matter. 7. The real question is whether there is sufficient ground for proceeding against the applicant. This, in turn, raises the question as to whether there is sufficient and/or satisfactory material to show the involvement of the applicant in the alleged offence. 8. The case of the investigating agency is that the applicant had offered an amount of Rs.5,00,000/- (Rupees Five Lac) to the accused nos.2 and 3 for committing the murder of Naresh. However, admittedly, there is no material in the charge-sheet to support this allegation which appears to have been based on the alleged information received by the investigating agency from the co-accused. 9. Though the case is of conspiracy, there is no material to show that the applicant was seen in the company of those accused who are alleged to be the actual assailants. There is no material to show that the applicant had paid any amount to the actual assailants or had agreed to pay such amount to them. There is no material to show that the applicant and the actual assailants were seen having some discussions in a suspicious situation, at the material time. 10. I have heard Ms.Parab, learned counsel for the wife of the deceased, who was permitted to appear and make submissions opposing the Revision Application. She has drawn my attention to the statement of the wife of the deceased recorded on 25th October, 2010. This statement, in my opinion, does not reveal anything against the applicant. My attention was also drawn to the statement of one Sohamsingh Chauhan recorded on 8th September, 2010 i.e. after about one and half month from the date of murder. She has drawn my attention to the statement of the wife of the deceased recorded on 25th October, 2010. This statement, in my opinion, does not reveal anything against the applicant. My attention was also drawn to the statement of one Sohamsingh Chauhan recorded on 8th September, 2010 i.e. after about one and half month from the date of murder. This statement indicates that the co-accused Vivek Vaity and the applicant were seen by this person while they were passing through the road in front of the shop of this witness, at about 8.30 p.m. on 28th July, 2010 alongwith 'two other persons'. Admittedly, who were the 'two other persons' has not been indicated from any material in the charge-sheet. My attention was also drawn to the statements of one Avinash Bhiva Patil and one Gajanan Chibaikar, both recorded on 8th September, 2010. I fail to see, how these statements connect the applicant with the alleged offences as the conspirator. 11. The picture that emerges is as follows. That, there was some family dispute over the division of the ancestral family property, between the deceased and the applicant. However, inspite of such dispute, the applicant was not suspected after the murder, and therefore, clearly the dispute, at that time, was not thought to be that serious. In any case, merely because the applicant had some grudge against the deceased, it cannot be presumed that he was a conspirator in respect of the conspiracy to commit the murder. There is absolutely no material to support the theory of conspiracy. 12. I have carefully gone through the impugned order. The learned judge while refusing to discharge the applicant has avoided to discuss the material in the charge - sheet. He has simply relied upon the allegations levelled against the applicant in the police report, without examining whether these allegations are supported by the material in the charge - sheet. In considering whether or not there is ground for proceeding against an accused, the Court is required to -rather, obliged to - consider what is the allegation against such accused, and further whether it is supported by the material in the charge sheet. 13. In my opinion, there are not sufficient grounds for proceeding against the applicant. The applicant ought to have been discharged. Consequently, the Revision Application succeeds. 14. The Revision Application is allowed. 15. The impugned order is set aside. 16. 13. In my opinion, there are not sufficient grounds for proceeding against the applicant. The applicant ought to have been discharged. Consequently, the Revision Application succeeds. 14. The Revision Application is allowed. 15. The impugned order is set aside. 16. The applicant shall stand discharged. 17. The learned Additional Sessions Judge shall proceed further with the case in accordance with the law.