ORDER

1. Seven accused are being tried before the Session Judge, Raigad in Sessions Case No. 115 of 1984 for offences under Ss. 120B, 143, 147, 148, 302 read with Ss. 149, 302 read with S. 34, 307 read with S. 149 and accused 1, the present petitioner is also charged under S. 201, I.P.C. Out of those accused, accused 1 has preferred this petition by way of revision under S. 401, Cr.P.C. read with S. 482, Cr.P.C. and Art. 227 of the Constitution.

2. It appears that in the said trial, charges against all the accused were framed on 12th April 1985 and case has been now posted for evidence at the trial. It also appears that at the time of framing of charges, the Advocate appearing on behalf of accused 1 was not present and hence there was no opportunity for the Counsel to argue on behalf of the petitioner that the Police papers and the charge-sheet itself did not disclose any sufficient grounds for proceeding against accused 1, the petitioner.

3. Subsequently, an application came to be filed before the Sessions Judge few days before the regular trial was to commence. That application was presented on behalf of the petitioner accused 1 claiming discharge from the proceedings. The said application was disposed of boy the learned Sessions Judge by his order below Ext. 26 passed on 9th April 1986. The learned Sessions Judge on 9th April 1986. The learned Sessions Judge on hearing the petitioner's Counsel and the Public Prosecutor came to the conclusion that firstly the Police papers indicated that accused 1 was present at the time of the offence and was in the know of the incident and therefore there was enough material to proceed against the said accused. Secondly, he also concluded that this application could not be entertained at such a late stage when regular evidence was also to commence. He, therefore, rejected the application for discharge filed by accused 1. It is this order dt. 7th July 1986 which is impugned in the present petition.

4. On hearing Shri S. R. Chitnis for the petitioner, accused 1 and Shri B. K. Raje, Public Prosecutor for the State I passed the following order on 22-7-86.

"For the reasons to follow, Rule is made absolute. Petitioner accused 1 is hereby discharged from the proceedings. The trial Court to proceed against others after amending the charges. The order be communicated to the trial Judge forthwith.

5. The following are the reasons for the said Order.

6. It is the case of the prosecution as disclosed from the charge-sheet and investigation papers that on 11th January 1983 at village Kalamboli one Abdul Gafur along with his brother Abdul Rehman and Abdul Ismail had gone to the locality where accused 1 resides with his son and that all of them were assaulted by means of swords and other lethal weapons in pursuance of conspiracy.

7. Shortly prior to the incident in the morning accused 1 is alleged to have sent his son to call Abdul Rehman and Abdul Gafur to his residence for discussion regarding the dispute. Accordingly in the evening the victims are reported to have reached the residence of accused 1. When they reached his house, they were informed that the petitioner is not in the house. They were therefore returning away from his house when suddenly son of the accused and other persons who are accused 2 to 7 are alleged to have assaulted Abdul Rehman and Abdul Ismail with weapons such as swords, spears, knives and iron bars etc. Abdul Rehman succumbed to the injuries sustained shortly thereafter while Abdul Gafur and Abdul Ismail sustained injuries. According to the prosecution all the accused 1 to 7 between 6 and 11th January 1983 had agreed to do or caused to be done the illegal act of commission of murder of Abdul Gafur, that in pursuance of the criminal conspiracy, they formed an unlawful assembly with the common object of committing murder of Abdul Rehman and Abdul Ismail; that in pursuance of the said criminal conspiracy they were members of an unlawful assembly wherein violence in pursuit of the common object was used; that in pursuance of the said criminal conspiracy and with common object they intentionally caused the death of Abdul Rehman by means of deadly weapons alternatively in pursuance of the said criminal conspiracy and in furtherance of the common object they committed murder by intentionally causing the death of the Abdul Rehman by means of deadly weapons; that all the accused in pursuance of the said conspiracy voluntarily caused hurt by means of dangerous weapons to Abdul Gafur and Abdul Ismail with intention and under such circumstances that if by they would have caused the death of the said Abdul Gafur and Abdul Rehman they would have been guilty of committing murder and lastly that accused 1 at Panvel knowing that certain offence i.e. the murder of Abdul Rehman and attempt to commit murder of Abdul Gafur and Abdul Ismail having been committed knowingly gave false information to Police Inspector at Panvel Police Station that Abdul Gafur, Abdul Rehman and Abdul Ismail along with two three other persons attempted to commit murder by means of revolvers and knives by accused 1 and his son and this false report was given with intention of screening himself and his sons from legal punishment.

8. With the assistance of the Counsel for both the parties, I have gone through the entire Police papers and the copy of the charge-sheet annexed to the petition. Right from the first information report it appears that the injured person approached the Police Station at Panvel and sought medical assistance for Abdul Gafur and on being asked as to the reasons of their injuries they informed that they had gone to the house of accused 1 for the settlement regarding the dispute about his quarry and there was a debate where some persons assaulted the three by sharp weapons in which incident Abdul Rehman has died. Another information report is also filed along with F.I.R. which discloses that when the injured were asked, they avoided to answer the question of the cause of their injury. Ultimately after persistent queries the police Head Constable was informed "we do not wish to state anything". From the statements of the victims recorded on 15-1-86 four days after the incident he states accused 1 was not present in the house and while they were returning sons of Pawar by name Kishor and Duva (Govind) came and assaulted them with swords, i.e. to say Abdul Gafur in his statement after four days implicates only two persons. In further statement recorded on 23rd January, 1986 Abdul Gafur states "it was Govind Burani and another lean person who assaulted us and probably Kishor fired short at us. In his further statement recorded on 4-3-83 Abdul Gafur states that he would be able to identify only Govind and Kishor. The same version is reported in his further statement dt. 15-6-83 and 17-12-83.

9. On going through the statements of several witnesses recorded and which are recorded several weeks after the incident it appears that no material whatsoever has been collected to show that there was agreement or understanding between the accused persons by way of the criminal conspiracy to do away with the injured.

10. It was urged on behalf of the prosecution that even if there was no direct evidence of criminal conspiracy, yet the same could be inferred from the fact that the injured persons were sent a message by accused 1 through his son and accordingly they had reached the spot. Since they were assaulted immediately for no rhyme or reason, it can be inferred that there was a plan mooted out by the accused persons at the instance of the accused 1 to kill or injure the visitors. I am not able to follow the line of argument for the simple reason that from the very first report of the incident, there were series of additional statements of the complainant recorded during the investigation from January 1983 to December 1983. None of the statements except the last statement recorded in December indicates doubt in the mind of the complainant that it was out of conspiracy that he and his colleagues were called to the house of the accused. To draw an inference of conspiracy on the basis of this suspicion would be too far-fetched. Moreover, there is direct evidence of one Kumari Aruna Mohite whose statement was recorded on 14th January 1983, 20th February 1983 and 14th June 1983. It is her version that at the time of the incident she was present in the house, that Pawar's house is immediately nearby, that she saw a car arriving at the house of Pawar, that five or six persons got down from the car and went to the house of Pawar, that she heard lot of verbal exchange and abuses and thereafter heard gun shots. In her additional statement she stated that a quarrel and scuffle were going on for a long time and thereafter gun shots were heard. From this direct evidence a contrary inference can be drawn to the effect that the attack was not pre-planned but was an outcome of a quarrel and verbal exchanges followed by a scuffle, resulting in the attack.

11. It was also submitted on behalf of the prosecution that there was an agreement regarding quarry rights and machinery in favour of the complainant by Pawar, that certain negotiations had taken place and that Pawar was trying to come out of the said agreement. The learned Public Prosecutor submitted that accused 1 and his colleague had a motive to invite Abdul Gafur and others and to kill them or injure them. I am unable to draw any inference of conspiracy from this circumstances alone. If at all this dispute can lead to another inference, namely that Abdul Gafur and party also had a motive to force accused 1 to complete the transaction in their favour and therefore had gone to his house to settle the issue. For these reasons the very basis of the prosecution about the criminal conspiracy is absent prima facie.

12. If that be so, then it is an admitted position that petitioner accused 1 was not present at the time of the incident. The statements of all the witnesses show that it was only the sons of Pawar and their colleagues who were present at the material time. In fact it is the case of the complainant that on reaching the house of the Pawar, they were informed that Pawar is not in the house. Thus, even for the main incident, petitioner Baburao has not participated in the incident.

13. The prosecution sought to rely on a report lodged by Baburao, the petitioner or 11-1-1983 on the date of the incident itself in which he had stated that at the material time he was present in the house, but that seeing the complainant and his associates getting down from the car shouting for him and hurling abuses at him and asking him to sign the document, failing which he and his family members would be killed by gun shots, he got scared and instead of coming out of the house, he escaped by the rear side. Learned Public Prosecutor submitted that the report filed by the petitioner clearly established that he was present at the material time inside the house. In my opinion, such a statement of the accused recorded during the investigation cannot be admitted on record. Even assuming that such a statement can be taken into consideration, then the entire statement as a whole will have to be looked into and not only stray sentences in that statement. If that is done, it would show that it was the complainant's party who had come to assault him at the material time, in case he refused to sign the transfer papers. In any case, the said statement cannot involve him either in the charge of conspiracy or for the participating or abetting in the commission of the offence of assault.

14. For all these reasons there is absolutely no prima facie case made out for proceedings against petitioner 1 Baburao for any of the charges framed against him.

15. The learned Public Prosecutor also urged that the trial had reached the stage of evidence, when accused 1 had filed an application for discharge. He also submitted that the learned trial Judge has rightly rejected the application on the ground of delay. This submission is only to be mentioned for being rejected. The accused is entitled to ask for the discharge from the prosecution at any stage and there is no time limit for filing such an application. Delay even can be overlooked because a right to ask for discharge is always available to an accused at any stage of a trial. It must be borne in mind that the accused is not guilty, unless he is proved to be so and if he is able to point out even before the commencement of the trial that he has been falsely implicated and involved in the trial and that there is no prima facie case against him, he is at liberty to ask for discharge. It is also not a case where some circumstantial material is already placed on record which can be substantiated later on during the trial by the prosecution. The faint basis of the prosecution as regards conspiracy has been brought in during the investigation for the first time 12 months after the incident. This itself lends support to the theory that the charge of conspiracy is being laid at the door of the accused as an afterthough and that too mainly on suspicion. For these reasons therefore the petitioner accused 1 Baburao is entitled to be discharged from the proceeding of the charges leveled against him.

16. These are the reasons for the order of the discharge passed on 22-7-1986 quoted above. Rule absolute as above.

17. Order accordingly.