The main legal point established in the judgment is the insufficiency of material to frame the charge against accused Nos. 5 and 6 under sec. 306 read with sec. 34 of the Indian Penal Code, leading to the allowance of their discharge application.

JUDGMENT

G.A.SANAP,J. - Admit. Heard finally by consent of learned Advocates for the parties. Perused the record and proceedings.

2. The order dtd. 10/2/2021 passed by the learned Assistant Sessions Judge, Khamgaon is impugned in this revision application, whereby the learned Assistant Sessions Judge was pleased to reject the application made by the applicant/accused Nos. 5 and 6 for discharge in Sessions Trial No. 63/2017 for the offences punishable under Sec. 420, 306 read with sec. 34 of the Indian Penal Code.

3. The informant is the wife of the deceased. In the report lodged by the informant, it was alleged that her husband committed suicide due to the torture and deception caused to him by accused persons. She found suicide note in his trouser pocket. The suicide note contained the nature of transactions and the cheating of the deceased at the hands of the accused persons. After investigation, the chargesheet has been filed.

4. In the application made for discharge, it is the case of the applicants/ accused Nos. 5 and 6 that the accused No. 2 whose name has been mentioned in the suicide note has been granted the benefit of quashing of the report lodged against him under sec. 306 read with sec. 34 of the Indian Penal Code. It is stated that as compared to the role of the accused No. 2, their role is very minor. No case has been made out against them for framing the charge. They are entitled for discharge. The charge cannot be framed inasmuch as the material compiled in the chargesheet is not sufficient to frame the charge against them.

5. Application was opposed by the prosecution. The prosecution contended that benefit of quashment of the proceedings against the accused No. 2 punishable under sec. 306 read with sec. 34 of the Indian Penal Code cannot be extended to the accused Nos. 5 and 6 while deciding their discharge application. In short, it is the case of the prosecution that there is sufficient material on record to frame the charge against them for the offence under sec. 306 read with sec. 34 of the Indian Penal Code.

6. The informant-wife of the deceased has filed the reply and opposed the revision application. In short, the non-applicant No. 2 has contended that learned Assistant Sessions Judge has not committed any illegality while rejecting their application for discharge.

7. I have heard Shri Anand Deshpande, learned Advocate for the accused Nos. 5 and 6, Shri S.A. Ashirgade, learned APP for the State and Shri A.D. Bhate, learned Advocate for the informant- Non-applicant No. 2. Perused the record and proceedings.

8. It is to be noted that First Information Report against the accused No. 2 for the offence punishable under sec. 306 read with sec. 34 of the Indian Penal Code has been quashed vide order dtd. 8/8/2017 by Division Bench of this Court in Criminal Application (APL) No. 90/2017. The material which has been taken into consideration while passing this order was the suicide note. It is to be noted that the name of the accused No. 2 was mentioned in the suicide note. The names of the applicants/accused Nos. 5 and 6 have been mentioned in the suicide note. However, it is seen that no specific role has been attributed to them in the commission of crime. The reference to their names in the suicide note has been made in connection with the transaction of sale of land and the transfer of money in that regard. In my view, this order of quashing of the First Information Report against the accused No. 2 under sec. 306 on the same set of facts and evidence would apply with equal force to the case of accused Nos. 5 and 6.

9. On going through the material placed on record, I am of the view that the material on record is not sufficient to frame the charge against them under sec. 306 read with sec. 34 of the Indian Penal Code. The learned Judge has not taken this aspect into consideration while deciding the discharge application. It is to be noted that at the most the prosecution for an offence under sec. 420 can go on