Case Note & Summary
The case arises from a criminal revision application filed by Vijay Lulla, accused No.6, challenging the order dated 22.05.2015 passed by the Additional Sessions Judge, Vasai, rejecting his application for discharge under Section 227 of the Code of Criminal Procedure, 1973 (CrPC) in Sessions Case No.67 of 2008. The prosecution case pertains to the murder of Multanmal Jain on 29.03.2008 at Flat No.201 of Mangalam Apartments, Nalasopara (East). The incident was preceded by a quarrel on 28.03.2008 over water splashing from a balcony. The first informant, Sharda Natwarlal Patel, alleged that accused Nos.2, 5, 6 and 7, all relatives of the Lulla family, held a grudge against the deceased and hatched a conspiracy to murder him, roping in accused Nos.1, 3 and 4. On the date of incident, accused Nos.1 to 4 barged into the deceased's flat, abused and assaulted him with wooden sticks, leading to his death. The applicant, accused No.6, was admittedly not present at the spot of the incident. His name surfaced in the statement of eyewitness Kashmira Mandliya, who stated that on the afternoon of 29.03.2008, accused Nos.6 and 7 visited her flat along with accused No.5, and accused No.7 expressed that the deceased and the first informant had become a nuisance and should be taught a lesson. The applicant argued that there was no evidence linking him to the conspiracy or the actual assault, and that co-accused No.5, Jaya Lulla, had already been discharged by this Court in Criminal Revision Application No.503 of 2010. The State opposed the revision, contending that the offences were serious and that the applicant's involvement could not be ruled out due to his presence in the building on the day of the incident. The High Court, after perusing the record, held that from a bare reading of the statement of Kashmira Mandliya, no specific overt act was attributable to the applicant. Merely being present at Flat No.301 along with accused Nos.5 and 7 and the statement made by accused No.7 could not be held as an act attributable to the applicant unless it prima facie showed that he played any active role or was involved in any conspiracy or was present at the incident spot. Admittedly, the applicant was not present at the incident spot. Therefore, the court allowed the revision application, set aside the impugned order, and discharged the applicant from Sessions Case No.67 of 2008.
Headnote
A) Criminal Procedure - Discharge under Section 227 CrPC - Prima Facie Case - The court must assess whether there is sufficient ground for proceeding against the accused; mere presence at a different time and place without any overt act or active participation in the conspiracy or incident does not warrant framing of charges. (Paras 8-9) B) Evidence - Conspiracy - Overt Act - In the absence of any specific overt act attributable to the accused, mere presence along with co-accused who made incriminating statements cannot be held as an act attributable to the accused for the purpose of framing charges. (Para 8) C) Criminal Procedure - Discharge - Parity with Co-Accused - Where a co-accused in a similar or worse footing has been discharged, the accused is entitled to similar treatment. (Para 5.2)
Issue of Consideration
Whether the Additional Sessions Judge erred in rejecting the discharge application of accused No.6 under Section 227 CrPC when there was no prima facie evidence linking him to the alleged conspiracy or the actual incident of murder.
Final Decision
The court allowed the Criminal Revision Application, set aside the order dated 22.05.2015 passed by Additional Sessions Judge, Vasai, and discharged the applicant (accused No.6) from Sessions Case No.67 of 2008. Interim Application No.1054 of 2020 was dismissed for non-prosecution.
Law Points
- Discharge under Section 227 CrPC
- Prima facie case
- Conspiracy
- Overt act
- Standard of proof at framing of charges
