Damodhar S/O. Samayya Pottala vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 6669 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                      CRIMINAL REVISION NO.35/2017

      Damodhar s/o Samayya Pottala,
      aged about 45 years, Occ. Private,
      r/o Gumalkonda, Sironcha, Kottagudam,
      Tq. Sironcha, Dist. Gadchiroli.      .....APPLICANT

                               ...V E R S U S...

      State of Maharashtra through 
      Police Station Officer, Sironcha, 
      Dist. Gadchiroli.                                       ...NON APPLICANT
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 Mr. A. S. Kinkhede, Advocate for applicant. 
 Mr. I. Damle, A.P.P. for non applicant. 
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                               CORAM:- V. M. DESHPANDE, J.

DATED :- 31.08.2017 ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard finally

by consent of the parties.

2. This revision arises out of order passed by the learned

Additional Sessions Judge-2, Gadchiroli dated 20.01.2017 below

Exh.-18 in Sessions Case No.124/2015. By the impugned order,

the learned Court below rejected the application filed by the

present applicant, who is arrayed as accused no.3, under Section

227 of the Code of Criminal Procedure and refused to discharge

him from the case.

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3. One Rajeshwari, the victim lodged an oral report at

Police Station, Sironcha on 30.07.2015. On the basis of her

report, an offence under Section 376 (1), 313, 315, 328, 342, 34

of the Indian Penal Code and Sections 33 and 35 of the

Maharashtra Medical Practitioners Act was registered against one

Balaji Isa Bore vide Crime No.38/2015.

4. As per the FIR, Balaji belongs to the same caste of the

victim and he came in contact with the victim. Though Balaji was

married, since he was not having any son or daughter, as per the

FIR he asked the victim as to whether she is ready for marriage.

According to the FIR, the first informant replied in positive and

started residing with Balaji as his wife, resulting into establishment

of physical contacts between them. Since she was pregnant, due

to the said physical contact, she was taken to the doctor by the

legally wedded wife of Balaji to know about her pregnancy. The

doctor confirmed the victim's pregnancy.

5. According to the FIR, on 29.07.1995 Balaji, to whom

the victim referred as her husband, administered some medicine

through her meals resulting into abortion of the fetus.

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6. During the course of investigation, it is revealed that

the present applicant has procured the medicine from one Satish

the co-accused who was posing himself as Doctor. Therefore, the

present applicant is also arrayed as accused in the final report.

Even assuming that case of the prosecution is

completely true even then the charge-sheet is totally silent that at

the time of handing over the medicine by the present applicant to

Balaji, the applicant was knowing that the victim was carrying

pregnancy because of the physical contacts with accused Balaji.

7. There is nothing on record to show that the present

applicant was aware that the main accused Balaji is going to

administer the medicine to the victim. Further, the entire

investigation is totally silent that the present applicant was aware

that the medicine, which according to the prosecution was handed

over to him by the co accused Satish is being used aborting the

pregnancy.

8. In absence of anything on record, in my view, the

learned Judge of the Court below has committed serious mistake

in not discharging the present applicant.

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The charge-sheet even does not reflect strong suspicion

against the present applicant. It can be the ground for framing of

charge against the applicant to the effect that the applicant was

knowing about the facts which are discussed in the foregoing

paragraphs.

9. Resultantly, the revision application is allowed.

Impugned order dated 20.01.2017 passed by Additional Sessions

Judge-2, Gadchiroli below application Exh.-18 in Sessions Trial

No.124/2015 is quashed and set aside. Application Exh.-18 is

allowed. Applicant-Damodhar Samayya Pottala stands discharged

from Sessions Trial No.124/2015.

Rule is made absolute in the above terms.

JUDGE

kahale