High Court
Legal Reasoning
cria-1868.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1868 OF 20231) Rameshsing Khansing Bawri, (In FIR mentioned as Rameshsing Darbar Bawri), Age-40 years, Occupation:Labour, R/o-Ekta Nagar, Kamgar Vasti, Manwat, Tq-Manwat, Dist-Parbhani,2) Aayasing Khansing Bawri, Age-54 years, Occupation:Labour, R/o-Phule Nagar, Manwat, Tq-Manwat, Dist-Parbhani,3) Rubansing Khansing Bawri, (In FIR mentioned as Rubabhsing Mulagsing Bawri), Age-52 years, Occupation:Labour, R/o-Ekta Nagar, Kamgar Vasti, Manwat, Tq-Manwat, Dist-Parbhani,4) Barsatsing Aayasing Bawri, Age-28 years, Occupation:Labour, R/o-Phule Nagar, Manwat, Tq-Manwat, Dist-Parbhani,5) Balwindarsing Ballusing Bawri, Age-19 years, Occupation:Labour, R/o-Phule Nagar, Manwat, Tq-Manwat, Dist-Parbhani,6) Hardyalsing Joharsing Bawri, (In FIR mentioned as hardayalsasing Jawaharsing Bawri), Age-20 years, Occupation:Labour, R/o-Phule Nagar, Manwat, Tq-Manwat, Dist-Parbhani, cria-1868.2327) Ravindersing Ranjitsing Tak, Age-22 years, Occupation:Labour, R/o-Aathvadi Bazar, Manwat, Dist-Parbhani,8) Lakhansing Jipusing Junni, (In FIR mentioned as Lakhansing Dipusing Junni), Age-32 years, Occupation:Labour, R/o-Ekta Nagar, Kamgar Vasti, Manwat, Tq-Manwat, Dist-Parbhani,9) Bhimsing Jipusing Junni, (In FIR mentioned as Bhimsing Tipusing Junni), Age-25 years, Occupation:Labour, R/o-Ekta Nagar, Kamgar Vasti Manwat, Tq-Manwat, Dist-Parbhani,10) Dipsing Rubansing Bawri, Age-28 years, Occupation:Labour, R/o-Ekta Nagar, Kamgar Vasti, Manwat, Tq-Manwat, Dist-Parbhani,11) Bhagatsing Aayasing Bawri, Age-19 years, Occupation:Labour, R/o-Phule Nagar, Manwat, Tq-Manwat, Dist-Parbhani,12) Pawansing Gabbusing Bawri, Age-22 years, Occupation:Labour, R/o-Ekta Nagar, Kamgar Vasti, Manwat, Tq-Manwat, Dist-Parbhani ...APPLICANTS VERSUS 1) The State of Maharashtra, Through Officer In Charge, Police Station Manwat, Dist-Parbhani,
Legal Reasoning
cria-1868.2332) Harbhajansing Jagdishsing Tak, Age-15 years, Occupation:Education, Through his natural guardian and mother Jeet Kaur w/o Jagdishsing Tak @ Jugnusing Tak, R/o-Kokar Colony, Manwat, Dist-Parbhani. ...RESPONDENTS ... Mr. Sudarshan J. Salunke Advocate for Applicants. Mr. G.A. Kulkarni, A.P.P. for Respondent No.1. Mr. Chetan Jadhav Advocate for Respondent No.2 (Appointed). ... CORAM: SMT. VIBHA KANKANWADI AND R.W. JOSHI, JJ. DATE : 19th NOVEMBER, 2024 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present application has been filed under Section 482 of theCode of Criminal Procedure, initially for quashing the FirstInformation Report (for short “the FIR”) vide Crime No.126 of2023 dated 15th April 2023 registered with Manwat PoliceStation, District-Parbhani and later on for quashing the charge-sheet bearing R.C.C. No. 160 of 2023 pending before the learnedJudicial Magistrate First Class, Manwat, District-Parbhani for theoffence punishable under Sections 304, 323, 143, 147, 149, 504,506 read with Section 34 of the Indian Penal Code. cria-1868.2342.Heard learned Advocate Mr. Salunke for the applicants,learned APP Mr. Kulkarni for State and learned Advocate Mr.Chetan Jadhav appointed to represent the cause of respondentNo.2. 3.Learned Advocate for the applicants has taken us throughthe FIR and the contents of the charge-sheet. He submits thatthe informant is a 15 years old boy, who has stated that around8.30 p.m. on 14th April 2023, he was proceeding towards hishouse from main road, Manwat. When he was near a statue, atthat time applicant No.11 Bhagatsing and applicant No.12Pawansing had assaulted him, unnecessarily, therefore, he wentrunning to the house of his uncle Harjeetsing. He then says thatthereafter he himself and his uncle went to Pathri Naka, whereall the applicants were present. Out of them, applicant No.1Rameshsing and applicant No.2 Aayasing started quarrelingwith his uncle Harjeetsing. The informant and his uncle weregiving understanding to them and since the uncle was havingproblem of blood pressure and sugar (diabetes), they wererequesting not to quarrel. The informant says that though theapplicants were knowing the physical condition of Harjeetsing,yet applicant Nos.1 and 2 started abusing and threatening his cria-1868.235uncle. His uncle’s blood pressure shoot up and he fell down andthen all of the accused fled. Then the informant called hisrelatives and took his uncle to Dagdu hospital. But then thedoctor told that the uncle should be taken to GovernmentHospital, Manwat. At Government Hospital, the uncle of theinformant was declared dead. The postmortem was conductedand it was opined that Harjeetsing expired due to heart attack.The postmortem report is now collected and is part of thecharge-sheet, which shows that there was no external injury tothe deceased. The final cause of death is “death due to cardio-respiratory failure due to acute myocardial infarction.” Theapplicants by no stretch of imagination had any intention, even iffor the sake of arguments there was some interaction betweenthem and deceased, that their action would amount to culpablehomicide not amounting to murder, or in other words, there wasany intention in the mind of the applicants to cause death ofdeceased Harjeetsing. In fact other applicants have not evensaid anything nor touched the deceased. Only presence cannotbe considered as by way of common object or as a commonintention. 4.Per contra, the learned APP Mr. Kulkarni as well as learnedAdvocate Mr. Jadhav appointed to represent the cause of cria-1868.236respondent No.2, submits that respondent No.2 – the informantwas only 15 years old boy. There was no occasion for applicantNos.11 and 12 to assault the informant unintentionally. Therewas an intention behind their act. The applicants are from thefamily of Balramsing, whose murder had taken place on 6thOctober 2022 and in connection with the said murder theinformant’s father and other relatives were arrested. Theapplicants had grudge against the informant and his family.There are statements of witnesses who had seen the incidentand then took Harjeetsing to hospital. Therefore, there issufficient evidence for the trial. 5.At the outset it is to be noted that two incidents have beenstated in the FIR. The first incident was at 20.30 hours when theinformant alone was returning to his home and was assaulted byapplicant No.11 Bhagatsing and applicant No.12 Pawansing. Forthat purpose, definitely, as against them offence under Section323 of the Indian Penal Code appears to be made out. Thesecond incident is after the informant takes his uncle at the spot.Definitely, informant would have said something regarding theincident which occurred with him and then Harjeetsing wouldhave gone to the said place. It is then stated that all theapplicants i.e. 12 in number were present there. When they were cria-1868.237already present, we may not strictly apply the sections forunlawful assembly and the common object.6.Further, as regards Section 304 of the Indian Penal Code isconcerned, the prosecution will have to prove that there wasculpable homicide not amounting to murder. For that purpose itwill have to be shown, even prima facie also, that if the act bywhich death was caused is done with the intention of causingdeath and then that person would be held responsible. We mayconsider the decision in Mahadev Prasad Kaushik vs State Of U.P.and another, AIR 2009 Supreme Court, 125, wherein it has beenobserved thus:-“23. Plain reading of the above section makes it clear that itis in two parts. The first part of the section is generallyreferred to as "Section 304, Part I", whereas the second partas "Section 304, Part II". The first part applies where theaccused causes bodily injury to the victim with intention tocause death; or with intention to cause such bodily injury asis likely to cause death. Part II, on the other hand, comesinto play when death is caused by doing an act withknowledge that it is likely to cause death, but without anyintention to cause death or to cause such bodily injury as islikely to cause death. 24. The Makers of the Code observed; cria-1868.238“ The most important consideration upon a trial for thisoffence is the intention or knowledge with which the actwhich caused death, was done. The intention to cause deathor the knowledge that death will probably be caused, isessential and is that to which the law principally looks. Andit is of the utmost importance that those who may beentrusted with judicial powers should clearly understand thatno conviction ought to take place, unless such intention orknowledge can from the evidence be concluded to havereally existed".25. The Makers further stated;“It may be asked how can the existence of the requisiteintention or knowledge be proved, seeing that these areinternal and invisible acts of the mind? They can beascertained only from external and visible acts. Observationand experience enable us to judge of the connectionbetween men's conduct and their intentions. We know that asane man does not usually commit certain acts heedlessly orunintentionally and generally we have no difficulty ininferring from his conduct what was his real intention uponany given occasion". 26. Before Section 304 can be invoked, the followingingredients must be satisfied; (i) the death of the person must have been caused; (ii) such death must have been caused by the act of theaccused by causing bodily injury;(iii) there must be an intention on the part of the accused(a) to cause death; or (b) to cause such bodily injurywhich is likely to cause death; (Part I) or(iv) there must be knowledge on the part of the accused cria-1868.239that the bodily injury is such that it is likely to cause death(Part II). ”7.Here in the present case the entire material in the charge-sheet does not disclose the fact that the present applicants hadthe knowledge about the physical condition of Harjeetsing.Further it appears that he was suffering from blood pressure anddiabetes. Even if it is accepted for a while that the applicants hadthe knowledge that he was suffering from such diseases; thosediseases per se will not cause death of the personinstantaneously. There are many factors for a sudden cardio-respiratory arrest and therefore, the ingredients of Section 304of the Indian Penal Code are not at all attracted in the presentfacts of the case. 8. So far as applicant Nos.3 to 10 are concerned, they weremere present on the spot and their presence at the spot wasnatural. Further, no role has been attributed to them. 9.As aforesaid, though Sections for unlawful assembly maynot be made out but Section 34 of the Indian Penal Code wouldthen come into play for the other acts of applicant Nos.1, 2, 11 cria-1868.2310and 12. and therefore, we are of the opinion that the Applicationdeserves to be partly allowed. Hence we pass following order:- O R D E R(I)The Applications stands partly allowed.(II)The proceedings in R.C.C. No. 160 of 2023 pending beforethe learned Judicial Magistrate First Class, Manwat, District-Parbhani for the offence punishable under Sections 304, 323,143, 147, 149, 504, 506 read with Section 34 of the Indian PenalCode arising out of the First Information Report vide CrimeNo.126 of 2023 dated 15th April 2023 registered with ManwatPolice Station, District-Parbhani stands quashed and set aside asagainst applicant Nos. 3 to 10 i.e. 3) Rubansing Khansing Bawri,4) Barsatsing Aayasing Bawri, 5) Balwindarsing Ballusing Bawri,6) Hardyalsing Joharsing Bawri, 7) Ravindersing Ranjitsing Tak,8) Lakhansing Jipusing Junni, 9) Bhimsing Jipusing Junni and 10)Dipsing Rubansing Bawri.(III)The proceedings in R.C.C. No. 160 of 2023 pending beforethe learned Judicial Magistrate First Class, Manwat, District-Parbhani arising out of the First Information Report vide Crime cria-1868.2311No.126 of 2023 dated 15th April 2023 registered with ManwatPolice Station, District-Parbhani stands quashed and set aside tothe extent of the offence punishable under Sections 304, 143,147, 149 of the Indian Penal Code as against applicant Nos. 1, 2,11 and 12 i.e. 1) Rameshsing Khansing Bawri, 2) AayasingKhansing Bawri, 11) Bhagatsing Aayasing Bawri and 12)Pawansing Gabbusing Bawri.(IV)We clarify that the charge-sheet i.e. proceedings in R.C.C.No. 160 of 2023 would remain in respect of Sections 323, 504,506 read with Section 34 of the Indian Penal Code as againstapplicant Nos. 1, 2, 11 and 12.(V)Fees of learned Advocate Mr. Chetan Jadhav, who isappointed to represent the cause of respondent No.2 isquantified at Rs.5,000/-, to be paid by the High Court LegalServices Sub Committee, Aurangabad. [R.W. JOSHI] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/NOV24