R. Y. Ganoo, J. - (1.)Rule returnable forthwith. Heard finally by consent of the parties.
(2.)The applicant is sister of one person by name Rajesh Ramteke. The said Rajesh Ramteke got married to one lady by name Vaishali. The applicant is resident of Delhi. On the basis of charge-sheet, it appears that relations between the said Rajesh and Vaishali were not good and one finds allegations against said Rajesh and his relatives including the applicant that Rajesh, applicant and other relatives used to inflict cruelty upon said Vaishali. It is seen that the First Information Report came to be filed by father of said Vaishali namely Ramdas and that is how the investigation was initiated. The said F. I. R. mainly deals with inflicting cruelty upon Vaishali. It is also stated in the F. I. R. that all these relatives including the applicant were responsible for the death of said Vaishali. Said Vaishali was in the house on 15. 06. 2008 and according to the prosecution, through witness by name Mangala, it is sought to be suggested that the said Rajesh caused death of Vaishali by hanging her to rope. The investigating agency has filed charge-sheet under Section 302, 408 read with Section 34 of the Indian Penal Code. The applicant filed an application under Section 227 of the Code of Criminal Procedure in Sessions Trial No. 401/2008 for discharge from the the said trial pending before the learned Ad hoc Additional Sessions Judge-6, Nagpur (hereinafter referred to as learned Additional Sessions Judge ). The said application came to be rejected and that is how the applicant has filed present application.
I have heard learned Advocates for both the sides. The learned Advocate Mr. Daga submitted that the learned Additional Sessions Judge erred in not discharging the applicant at least with reference to charge under Section 302 of the Indian Penal Code as according to the learned Advocate Mr. Daga, there is no material whatsoever disclosed in the charge-sheet that the applicant was responsible for murder of said Vaishali. He submitted that taking the charge-sheet as it is, there are no allegations to state that the applicant participated in the act of causing death of Vaishali on the date that is on 15. 06. 2008. He prayed that the applicant be discharged from the offence punishable under section 302 of the Indian Penal Code.

The learned A. P. P. Mr. Yengal appearing on behalf of the State tried to support the view taken by learned Additional Sessions Judge by submitting that the learned Additional Sessions Judge has considered the entire record and has given prima facie finding and, therefore, this Court should not interfere in the said order.

(3.)I have considered the entire charge-sheet and on consideration of the same, I am inclined to accept the arguments advanced by learned Advocate Mr. Daga that there is no material whatsoever even prima facie to come to the conclusion that the applicant has committed offence punishable under Section 302 of the Indian Penal Code. Said Vaishali is alive till afternoon of 15. 06. 2008 and Mangala, one of the witnesses, has seen Vaishali alive till about 1. 30 p. m. Mangala happens to be the neighbour of said Rajesh as well as Vaishali and she had noticed quarrel between Rajesh and Vaishali in the afternoon at about 1. 30 p. m. She treated the said quarrel as quarrel between husband and wife and did not pay any serious attention to it. Said Rajesh is said to have told Mangala that Vaishali has managed to get herself strangulated. It is at that point of time the said lady reached the house of Rajesh and noticed that Vaishali was hanging. If the statement of Managal is perused, it is clear that on 15. 06. 2008, the present applicant was not in the house and, therefore, she will not be able to point out any overt act to the applicant with reference to the charge under Section 302 of the Indian Penal Code. The learned A. P. P. Mr. Yengal, on the basis of the charge-sheet could not place before the Court any material even pirma facie to show that the applicant is remotely concerned with the charge under Section 302 of the Indian Penal Code. Hence, I am inclined to observe that the applicant is entitled to get order of discharge so far as charge under Section 302 of the Indian Penal Code.
I have perused impugned the judgment. There is some reference to charge under Section 306 of the Indian Penal Code and some discussion is made by learned Additional Sessions Judge in the following terms So after recording oral evidence and the facts would be more clear and at this stage, it cannot be said that there is no possibility of conviction of Accused No. 4 also fro the offence under Section 302 or 306 of I. P. C. If the prosecution will succeed to prove after having produced oral evidence, the offence under Section 306 I. P. C. then certainly Accused No. 4 will be liable as an abettor. So the application for discharge is not tenable and liable to be considered at this stage.