High Court

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28-appln-941-2021.odt-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD28 CRIMINAL APPLICATION NO. 941 OF 2021Subhash s/o Dhanraj KasliwalAge : 71 years, Occupation : Nil,R/o Vihamandva, Tq. Paithan,Dist. Aurangabad...APPLICANTVERSUS1.The State Of Maharashtra throughPachod Police Station, Tq. Paithan,Dist. Aurangabad2.Vishal S/o. Balasaheb AwareAge : 27 years, Occu. Agril.,R/o. Vihamandva,Tq. Paithan, Dist. Aurangabad...RESPONDENTS...Advocate for the Applicant : Mr. D. S. Bharuka APP for Respondent/State : Mr. A. D. Wange..... CORAM :SMT. VIBHA KANKANWADI ANDROHIT W. JOSHI, JJ. DATED :06 JANUARY 2025ORAL ORDER:- 1.Present application has been filed under Section 482 of Code ofCriminal Procedure, 1973 (for short ‘Cr.P.C.’) initially for quashing theFIR vide C. R. No.26 of 2021 registered with Pachod Police Station,Taluka Paithan, District Aurangabad and by way of amendmentquashing charge sheet bearing No.35 of 2022 filed on 07.03.2022,i.e., Sessions Case No.261 of 2023 pending before learned SessionsJudge, Aurangabad for the offence punishable under Section 306 read 28-appln-941-2021.odt-2-with Section 34 of the Indian Penal Code, 1860. 2.Heard learned Advocate for the applicant and learned A.P.P. forrespondent No.1. Respondent No.2 though served failed to causeappearance. 3.With the help of learned Advocate for the applicant and learnedA.P.P. we have gone through the entire charge sheet. It is the case ofthe prosecution that one Balasaheb Vitthalrao Aware, r/oVihamandawa, Taluka Paithan, District Aurangabad committedsuicide by hanging himself to a tree in agricultural land bearing gutNo.460 in the said village around 10 a.m. on 23.12.2020. The matterwas informed to the police and after the dead body was taken down,upon the personal search a cheat was found in which the name of thepresent applicant and one Natha Ramchandra Narwade was writtenas the persons because of whose atrocities he has committed suicide.It was stated in the cheat that he was facing hard due to theharassment and the interest that was charged to the loan amount. 4.Respondent No.2 is the son of deceased Balasaheb Aware. It isto be noted that though the incident of suicide is stated to have takenplace on 23.12.2020 the FIR has been lodged on 25.01.2021. It hasbeen stated in the FIR that as the informant was in grief he has notapproached the Police. Perusal of the charge sheet would show thataccidental death, i.e., A.D. No. 85 of 2020 was registered on the same 28-appln-941-2021.odt-3-day, i.e., 23.12.2020 by another son of the deceased. Said RambhauAware in the said A. D. has stated about suicide. His A. D. is totallysilent about the fact of finding the cheat in the handwriting ofBalasaheb on the spot in presence of the Police. The spot panchanamaand the post mortem report wherein the cause of death has beengiven as due to asphyxia with hanging. There are statements ofwitnesses recorded under Section 161 of Cr.PC. Now, the son who haslodged the A.D. namely, Rambhau in his statement under Section 161of Cr.P.C., taken on 26.1.2021, states about finding of the suicide noteon the person of his father after the dead body was taken down fromthe tree. Therefore, interestingly when his AD was totally silent butthen his statement under Section 161 Cr.P.C. discloses the suicidenote, it will have to be taken as one of the circumstance which isgoing in favour of the applicant. The other statements are thatanother son Ganesh, widow Lata which are on the same line and thestatement of another person Tatyarao Tade who is the villager of thedeceased speak about the cheat found on the person of deceased. 5.It appears that as on today the same cheat has been sent by theInvestigating Officer to the hand writing expert. However, even if wetake that the said cheat has been left by the deceased in his own handwriting it will have to be considered as to whether the same cheatdiscloses this fact which would amount abetment to commit suicide.What has been stated in the said note is thus:- 28-appln-941-2021.odt-4- Official Translation :-“ Balasaheb Vitthal AwareI am suicidal because of the troubles of the privatebank. Even though I paid the money to the private lender twoyears ago, they ask for it. I have taken this extreme step because Icould not bear the wrath of nature and the daily harassment ofmoneylenders.Subhash Dhanlal Kasliwal, took my land during year 95-96.Natha Ramchandra Narwade and Other The sons of my housework hard. And I pay these people money. I can’t bear it. Nomatter how much money I ma paying as interest,they are notsatisfied. I have taken this step as I do not want to suffer privatelenders. My family members Rambhau, Ganesh, Vishal, Sunita, Neelima,Suvarna, my little grandsons, Vaibhav, etc. Mangesh, Anjali, mybeloved Rohini and Ishwari, also my wife, Lata, have workedhard. My sons take good care of her, my hearty blessings to myson-in-law Ganesh, daughter and all as well as grandson KailasRao and ….. grandsons and granddaughters.” Thus, it is to be noted that name of the present applicant hasbeen mentioned but there is no statement in the said note as to howmuch amount was taken as a loan by the deceased from him when hesays that the applicant had taken his land in 1995-1996, stated to betowards interest. There is no explanation either in the cheat or in thestatement of three sons of the deceased as to why they had not takenup any legal proceedings to take back their land. What has beencollected during the course of investigation is the sale deed executedon 14.07.1995 by deceased in favour of present applicant and it isstated that it was for consideration of Rs.38,000/-. It is in respect of77 R land out of 7 H. 74 R. from gut No.276 situated at Vihamandva.It appears that thereafter the name of the present applicant came tobe mutated in the 7/12 extract. When it was a sale deed back to 28-appln-941-2021.odt-5-executed in the year 1995 and till 2020 no legal step was taken. It ishard to believe that there could have been any insistence of anyfinancial transaction in respect of the said transaction. Importantpoint to be noted is none of the sons have also stated as to how muchamount has been taken by their father as loan. Witness Rambhau andGanesh (sons of deceased) have stated that all the financialtransactions were looked out by the father and he used to deal themoutside the house that means without informing the sons. Generalstatements are made that deceased had taken some amount someyears ago but he could not returned the amount and therefore theapplicant had taken the land of the deceased. These statementsappeared to be referring to the transaction of 1995, that means soonbefore 23.12.2020 there were no financial transactions in the natureof loan between the applicant and the deceased. 6.The legal requirement in order to prove an offence underSection 306 with Section 107 of IPC has been reiterated by theHon’ble Supreme Court in the matters of Dilip S/o Ramrao Shirasaoand others vs. State of Maharashtra and another, 2016 ALL MR (Cri)4328, Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh,2002 Cri.L.J. 2796; Madan Mohan Singh vs. State of Gujrat andanother, reported in (2010) 8 SCC 628; S.S. Cheena vs. Vijay KumarMahajan reported in 2010 All MR (Cri) 3298 (S.C.)., Chitresh KumarChopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605, as well as 28-appln-941-2021.odt-6-this Court in the matter of Uddhav Bhaurao Shinde Vs. The State ofMaharashtra & Anr. (Criminal Application No. 1067 of 2023, decidedon 09.12.2024)7.On perusal of the entire charge sheet including the FIR is notsufficient to even attract the basic ingredients of the offence and thereis absolutely no evidence collected to show that the present applicantwas doing these acts with the common intention of the co-accused,this is a fit case where we can exercise our inherent powers underSection 482 of Cr.P.C.. It would be unjust to ask the applicant to facethe trial. Hence we proceed to pass the following order.:-O R D E R(i)Application stands allowed. (ii)The proceedings bearing Sessions Case No.261 of 2023 pendingbefore learned Sessions Judge, Aurangabad arising out of FIR videC.R. No.26 of 2021 registered with Pachod Police Station, TalukaPaithan, District Aurangabad for the offence punishable under Section306 read with Section 34 of the Indian Penal Code, 1860 standsquashed and set aside as against applicant, namely, Subhash s/o.Dhanraj Kasliwal.[ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEA.G.Narwade