High Court · 2025

Legal Reasoning

appln-2233-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2233 OF 20231.Ayub Khan Dilavar Khan PathanAge: 64 years, Occu.: Business,2.Asif @ Ashir Ayub Khan PathanAge: 34 years, Occu.: Business,3.Gulab Ayub Khan PathanAge: 41 years, Occu.: Business,All R/o. Amir Mala, In front of SunnyPalace, Nagar-Aurangabad Road,Ahmednagar, Dist. Ahmednagar. .. ApplicantsVersus1.The State of MaharashtraThrough its Investigation Officer,Ahmednagar Camp Police Station,Tq. And Dist. Ahmednagar.2.Bashir Dilavar Khan PathanAge: 48 years, Occu.: Business,R/o. Amir Mala, In front of SunnyPalace, Nagar-Aurangabad RoadAhmednagar, Dist. Ahmednagar3.Shamina Bashir PathanAge: 39 years, Occu.: Housewife,R/o. Amir Mala, Nagar-Aurangabad Road,Bhurunagar Shivar, Ahmednagar... Respondents…Mr. N. B. Narwade, Advocate for the applicants.Mr. A. R. Kale, Addl. Public Prosecutor for respondent No.1/State.Mr. Ashish Jadhavar, Advocate for respondent No.2.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 25 JUNE 2025 PRONOUNCED ON : 28 JULY 2025[1] appln-2233-2023.odtORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present application has been filed for quashing the proceedings inSessions Case No.181 of 2023 pending before the learned SessionsJudge, Ahmednagar arising out of the FIR vide Crime No.381 of 2022dated 30.08.2022 registered with Ahmednagar Camp Police Station,District Ahmednagar for the offences punishable under Sections 307,324 read with Section 34 of Indian Penal Code.2.Heard learned Advocate Mr. N. B. Narwade for the applicants,learned APP Mr. A. R. Kale for respondent No.1/State and learnedAdvocate Mr. Ashish Jadhavar for respondent No.2.3.Learned Advocate appearing for the applicants submits that this isan interesting case in a way that the FIR came to be lodged for theoffences punishable under Sections 307, 324 read with Section 34 ofIndian Penal Code on 30.08.2022 on the basis of the alleged statementof deceased, but after investigation the charge-sheet has been filed forthe offence punishable under Section 306 read with Section 34 of IndianPenal Code. In the charge-sheet, the investigating officer has statedthat there is CCTV installed in the premises of one Hayat Khan DilavarKhan Pathan, who is the brother of deceased and taking intoconsideration the said CCTV footage of which the transcript has been[2] appln-2233-2023.odtgiven and also the statements of Daulatbee Dilavar Khan Pathan -mother of the deceased, Rukhsana Hayat Khan Pathan, Anjum SameerKhan Pathan, Sana Ajij Khan Pathan, Ajij Khan Hayat Khan Pathan,Sameer Khan Hayat Khan Pathan, Munir Khan Sardar Khan Pathan andRaisa Munir Khan Pathan, the decision has been taken by him to file thecharge-sheet for the offence punishable under Section 306 read withSection 34 of Indian Penal Code. If we consider the spot panchanama,then we can get the fact that the house of the accused is on the northernside of the road. Near to his house, there is old brick kiln. In front of thattowards south, the chappals were found and there was also drum. Thehouse of Gulab Khan and Hayat Khan are on the southern side of theroad. The matchstick, burnt clothes were found in front of house ofGulab Khan Pathan. Only the family members of deceased are statingthat the applicants had set the deceased to fire. Hayat Khan Pathan hadalso received the burn injuries and he was admitted to Saideep HealthCare and Research Pvt. Ltd. i.e. the hospital where he had stated thathis brother Bashir had ablazed himself and while extinguishing the fire,he had sustained injuries. His statement has also been recorded in theform of dying declaration immediately on 01.08.2022. There wasproperty dispute that was going on between the brothers and it appearsthat due to those disputes, the deceased has tried to implicate thepresent applicants. The FIR cannot be therefore considered within the[3] appln-2233-2023.odtparameters of Section 32 of the Evidence Act when the CCTV footagegives an otherwise picture. The Camera No.3 showed the position at17.43.48 that Bashir Khan was coming and passing in front of the houseof Gulab Pathan. At 17.43.51 hours, he found trying to ignite thematchstick from the matchbox in his hands. His clothes appear to befound wet and he was not wearing Chappals. He was going towards thehouse of Hayat Khan Pathan. Between 17.44.00 to 17.44.12 hours, hewas found by standing in front of the gate of house of Hayat KhanPathan igniting the matchstick and setting the right side part of his shirtto fire. Thereafter, he ran towards the backside of the house when hisclothes were burning. It appears that thereafter Hayat Khan and othersgathered and Hayat Khan tried to extinguished the fire. There isabsolutely no evidence regarding abetment to commit suicide, if theprosecution intends to stick to Section 306 of Indian Penal Code. Undersuch circumstance, it would be an abuse of process of law, if theapplicants are asked to face the trial.4.Learned Advocate for the applicants relies on the decision of thisCourt in Vishnu Kisan Khedkar Vs. State of Maharashtra andanother, (2022 DGLS (Bom.) 3356 : [2023 ALL.M.R. (Cri.) 238] towhich one of us i.e. [Smt. Vibha Kankanwadi, J.] was party to theDivision Bench, taking into consideration the catena of judgments, it wasconsidered as to what are the ingredients of the offence to prove the[4] appln-2233-2023.odtingredients of Section 306 of Indian Penal Code. Here also, thoseingredients are not getting attracted from the facts of the case.5.Per contra, the learned APP for respondent No.1 and learnedAdvocate for respondent No.3 strongly opposed the application andsubmitted that though in the FIR the deceased had tried to give adifferent version, but the investigation revealed that the presentapplicants had instigated/abetted commission of suicide by deceased.There is a common agricultural land bearing No.29/1, 30/1 within thejurisdiction of Burhanpur. There is no partition in respect of the said land,still the accused persons had started making construction on the same.There were earlier quarrels those have taken place in respect of the saidproperty and the partition. Even the Murum from the common propertywas sold. Every act was objected by the deceased, but his objectionappears to have not been considered and the applicants were abusing,threatening him and telling him that he will not be given any share.Therefore, because of the harassment, the deceased had poured someinflammable substance from drum nearby his house and by goingtowards the house of Hayat Khan Dilavar Khan Pathan, he committedsuicide. Still, there is scope for the trial Court to decide as to exactlywhich offence has been committed and, therefore, this will not be a fitcase where the proceedings should be quashed and set aside underSection 482 of the Code of Criminal Procedure. [5] appln-2233-2023.odt6.Perusal of the FIR would give impression that injured Bashir wasin conscious state when his statement was recorded and, at that time, hehas stated that around 4.00 p.m. on 30.08.2022, when he was near hishouse and was going towards Pan shop, the applicants came near him.Applicant Gulab Pathan caused injury on his left thigh with the help ofsome sharp weapon and thereafter, by catching him, the diesel whichwas in drum, was poured upon his person and, therefore, he wentrunning towards his brother’s house Hayat Khan Pathan. At that time,applicant Gulab Pathan threw burning matchstick on his person and as aresult of which his clothes caught fire. One Munir Khan Pathan, brotherHayat Khan Pathan and Hayat Khan’s son Sameer extinguished the fire.Sameer then admitted him to the hospital. Thereafter, the panchanamaof the spot has been carried out and even statements of witnesses havebeen recorded. Statements of Daulatbee and others have been recordedon 31.08.2022 and all of them have stated that when Bashir came infront of house of Hayatkhan, he called mother, at that time, the clotheson his person were wet. He himself had ignited the matchstick frommatchbox he was carrying and then set himself to fire. Thereafter, thestatements of Shahrukh Pathan, who appears to be the nephew ofdeceased Bashir i.e. son of Nasirkhan, who was the brother of deceasedBashir, Shamina – widow of Bashir, Salman, who is son of deceasedBashir and brother-in-law of Bashir, Shaikh Nawaj Sikandar came to be[6] appln-2233-2023.odtrecorded on 18.09.2022. Except Shaikh Nawaj, all the others havestated that when they reached after the voice was raised by Bashir whenhe sustained burn injuries, Bashir told them the story as to how he wasset to fire by the applicants. Here, now the question is that the policethemselves appears to have disbelieved the story that was given by thedeceased Bashir in his dying declaration. It was specifically asked tolearned Advocate for respondent No.3 i.e. the widow of deceased Bashiras to whether she has challenged or taken any legal step challenging thecharge-sheet for the offence punishable under Section 306 of IndianPenal Code, the answer was in the negative. She is the only personwho can challenge the same. Of course, even at the time of framing ofcharge, the said point can be considered as to under which provisionsthen the charge is required to be framed, but if she was not satisfied withthe investigation that was done, then she could have approached theMagistrate under Section 173(8) of the Code of Criminal Procedure forfurther investigation. The position therefore now remains is that theinvestigating agency/prosecuting agency has given up the story told inthe dying declaration that the applicants had poured diesel upon theperson of deceased Bashir and then set him to fire. Why the statementsof widow, son, nephew and brother-in-law of deceased Bashir weretaken belatedly can be seen from letter dated 17.09.2022 given by A.S.I.to these persons wherein it was stated that they were asked to remain[7] appln-2233-2023.odtpresent for inquiry on 05.09.2022 at the police station, but they failed toappear and, therefore, they were asked to remain present on18.09.2022. It appears that at earlier point of time they had approachedthe police to give their statements. Whatever they have stated taken asit is would be the oral dying declaration, which is weak kind of evidence.As against this, in the charge-sheet itself, there are statements ofDaulatbee and others, which were taken on 31.08.2022 i.e. much earlierpoint of time i.e. on the next day of incident, wherein Daulatbee andRaisa (Daulatbee’s grand daughter) and Munir Khan (Raisa’s husband)were chitchatting on the swing in the tin porch opposite Hayat Khan’shouse around 5.30 to 6.00 p.m. Bashir Khan came and called Daulatbeeas “ekW” and when Daulatbee looked at him, they found that Bashir’sclothes were wet and he ignited a matchstick from the matchbox he wascarrying and set himself to fire. Raisa started shouting and thereupon,other persons came running. In the meantime, Bashir Khan went in thenarrow lane between Hayat Khan and Gulab Pathan’s house. Now, thereis supportive evidence in the form of CCTV footage which has beenrecovered and there is also the certificate under Section 65(b) ofEvidence Act in which he has been seen that Bashir Khan had sethimself to fire. Now, the question is whether there is evidence on recordto even prima facie show that the present applicants had abetted thecommission of the suicide by Bashir.[8] appln-2233-2023.odt7.In Vishnu Kisan Khedkar (Supra), we have taken note of thedecision in Chitresh Kumar Chopra vs. State (Govt. of NCT) of Delhi,[2009 16 SCC 605] and observed that :-“10.In almost all the cases and especially in ChitreshKumar (supra), it has been observed thus :-“As per the Section, a person can be said to have abettedin doing a thing, if he, firstly, instigates any person to dothat thing; or secondly, engages with one or more otherperson or persons in any conspiracy for the doing of thatthing, if an act or illegal omission takes place in pursuanceof that conspiracy, and in order to the doing of that thing;or thirdly, intentionally aids, by any act or illegal omission,the doing of that thing. Explanation to Section 107 statesthat any wilful misrepresentation or wilful concealment ofmaterial fact which he is bound to disclose, may alsocome within the contours of "abetment". It is manifest thatunder all the three situations, direct involvement of theperson or persons concerned in the commission of offenceof suicide is essential to bring home the offence underSection 306 of the IPC.” Thereafter, in that case the decision in RameshKumar vs. State of Chhattisgarh, (2001) 9 SCC 618 wasalso taken note of and it has been observed thus :- “16. Speaking for the three-Judge Bench in RameshKumar case, R.C. Lahoti, J. (as His Lordship then was)said that instigation is to goad, urge forward, provoke,incite or encourage to do "an act". To satisfy the[9] appln-2233-2023.odtrequirement of "instigation", though it is not necessary thatactual words must be used to that effect or whatconstitutes "instigation" must necessarily and specificallybe suggestive of the consequence. Yet a reasonablecertainty to incite the consequence must be capable ofbeing spelt out. Where the accused had, by his acts oromission or by a continued course of conduct, createdsuch circumstances that the deceased was left with noother option except to commit suicide, in which case, an"instigation" may have to be inferred. A word uttered in a fitof anger or emotion without intending the consequences toactually follow, cannot be said to be instigation. 17. Thus, to constitute "instigation", a person whoinstigates another has to provoke, incite, urge orencourage the doing of an act by the other by "goading" or"urging forward". The dictionary meaning of the word"goad"is "a thing that stimulates someone into action:provoke to action or reaction" (See: Concise OxfordEnglish Dictionary); "to keep irritating or annoyingsomebody until he reacts" (See: Oxford AdvancedLearner's Dictionary - 7th Edition).”The reason that was tried to be given is that there is dispute inrespect of Amir Mala land, which is pending before the Court. Thatcannot be the ground or act of abetment. That may be the reason fordispute, but in order to bring the facts within Section 306 read withSection 107 of Indian Penal Code, active participation or act isnecessary. We would like to rely on the decision in Prakash and Ors.[10] appln-2233-2023.odtVs. The State of Maharashtra and Ors., [MANU/SC/1397/2024], inwhich catena of judgments have been considered and the Hon’bleSupreme Court held down that unless there is active role played by anyaccused, question of continuing with the prosecution for the offenceunder Section 306 of Indian Penal Code would not arise.8.Therefore, taking into consideration the facts and the position oflaw, we are of the opinion that it would be an abuse of process of law, ifthe applicants are asked to face the trial. Hence, the following order :-ORDERI)Criminal Application stands allowed.II)The proceedings in Sessions Case No.181 of 2023 pendingbefore the learned Sessions Judge, Ahmednagar arising out of theFIR vide Crime No.381 of 2022 dated 30.08.2022 registered withAhmednagar Camp Police Station, District Ahmednagar for theoffences punishable under Sections 307, 324 read with Section34 of Indian Penal Code, stands quashed and set aside as againstthe present applicants viz. (i) Ayub Khan Dilavar Khan Pathan,(ii) Asif @ Ashir Ayub Khan Pathan and (iii) Gulab Ayub KhanPathan.[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[11]