At, In the High Court of Bombay at Aurangabad
By, THE HONOURABLE MR. JUSTICE T.V. NALAWADE
For the Applicants: Nilesh Ghanekar, Advocate. For the Respondents: B.J. Sonawane, A.P.P., R2, S.S. Ladda, Advocate.
Rule. Rule made returnable forthwith. Heard both the sides by consent for final disposal.
2. The present proceeding is filed u/s 482 of Cr.P.C. for quashing of Sessions Case No.98/2012 filed against the applicant for offences punishable u/s 366, 511 etc of the Indian Penal Code. The application filed for discharge before the trial Court is rejected by the trial Court.
3. The papers of investigation carried out by police are produced before this Court. This Court has perused the same.
4. The incident took place on 15/04/2011 after 22.30 hours. The complainant Farzana was present in her house situated at Dilras colony, Aurangabad with her daughter / prosecutrix. In the F.I.R. given on 16/04/2011 she made allegations that at the time of incident 3 to 4 youngsters entered her house and they were holding swords. They had come in one car of which number is given in the F.I.R.. Initially, they had taken name of son of the complainant and so the door of the house was opened by the complainant. One Imtiyaz was their leader and the boys were saying that they were brought by Imtiyaz for taking away prosecutrix from this house. The prosecutrix was initially present in the bathroom and when she came out, Imtiyaz / accused No.1 attempted to lift her and attempted to take her out of the house. The prosecutrix and the complainant started shouting. After hearing of the shouting, younger brother of the complainant rushed to the house along with son of the complainant. Then these boys left the house. The report was given after mid night and the crime came to be registered in Begumpura Police Station for offences punishable u/s 452, 363 read with section 34 etc. of the Indian Penal Code. On the same day, the complainant was referred for medical examination and one injury was found on her forearm.
5. Imtiyaz and other boys who had entered house of the complainant on that night, were known to Fahat, son of the complainant. His statement came to be recorded on 18/04/2011 and he described these boys by taking either their complete names or by taking their names. He took the names of Imtiyaz, Bablu, Mohamed, Jafer, Layik and Sumedh. He had seen 5 to 6 boys in the house when he had entered the house on that night. He disclosed these names to the complainant and to the prosecutrix. Supplementary statement of complainant came to be recorded on 18/04/2011 and she gave names of these boys in the supplementary statement. Statement of the prosecutrix came to be recorded on 18/04/2011 and she has stated that 5 to 6 boys had entered their house on that night. Her statement shows that Imtiyaz had become angry as father of the prosecutrix had turned down the proposal given by parents of Imtiyaz of marriage of Imtiyaz with prosecutrix. Her statement shows that when boys were present inside of the house, her brother Fahat and her maternal uncle had rushed to the house and they had seen these boys. The papers of investigation show that identification parade was not held though except Imtiyaz, other boys were not known to the prosecutrix. Names of these boys were known to Fahat, brother of the prosecutrix and so accordingly there will be evidence against these boys.
6. The material collected by police does not show that present applicants were described either by their description of personal appearance or by name by the witnesses to the Police. During arguments, ld. A.P.P. submitted that one boy was described as boy having black complexion and who was comparatively tall and slim. It was submitted that opportunity needs to be given to the witnesses to identify the accused during trial. These propositions cannot be accepted as Fahat knew all these boys. He gave names of all these boys to Police and their names are repeated in supplementary statement by the complainant. It is not the case of the State that the Car or motor cycle mentioned by the witnesses belong to the present applicants. The papers show that under panchanama one sword is shown to be recovered from petitioner No.1 Sk. Akhil. These documents do not show that it was recovered u/s 27 of the Evidence Act. It was submitted that names of these two persons were transpired during interrogation of main accused Imtiyaz. Thus, the submissions show that there will not be any evidence during trial on the basis of material collected against the two applicants to show that they had entered the house of complainant on that night with Imtiyaz. The description of Sk. Akhil, petitioner No.1 mentioned in arrest panchanama shows that he is having black complexion but his height is around 4' 11". Thus, he is not described as a tall person. Thus, the material collected as it is, is not sufficient to frame the charge for aforesaid offences against the petitioners. The Sessions Court has refused to discharge them, on the basis of the record of interrogation of accused Imtiyaz and on the basis of record of recovery of sword from petitioner No.2 Sahel Khan. Even if the circumstances are considered as they are, they are not sufficient for framing the charge.
7. The proceeding is filed for quashing of the case as against the applicants. This Court holds that
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as the material is not sufficient to frame the charge, they can be discharged so the things are kept open. So, the order. ORDER The application is allowed. Petitioners No.1 Shaikh Akhil Shaikh Jamil and petitioner No.2 Sahelkhan Ajij Khan stand discharged in Sessions Case No.98/2012 pending in the Court of Asstt. Adhoc Sessions Judge-1, Aurangabad which is for offences punishable under sections 366, 511, 323, 504, 506, 442, 454, 143, 147, 148, 149 of the Indian Penal Code in Crime No.50/2011. Rule made absolute in aforesaid terms.