Akshay Balbhim Gaikwad & others v. The State of Maharashtra & another
Case Details
- 1 - criappln2662.22.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2662 OF 2022 Akshay Balbhim Gaikwad & others Applicants Versus The State of Maharashtra & another Respondents Mr. P. B. Shirsat, Advocate for the applicants. Mr. S. D. Ghayal, APP for the State. Mr. P.B. Vikhe Patil, Advocate for respondent No. 2. CORAM : SMT. ANUJA PRABHUDESSAI & R. M. JOSHI, JJ. DATE : 2nd FEBRUARY, 2023. PER COURT : 1. 2. With consent, heard fnally at the admission stage. This is an application under Section 482 of the Code of
Facts
Criminal Procedure to quash the First Information Report No. I-
Legal Reasoning
witnesses, prima facie reveals that all these applicants were involved in assaulting the deceased by wooden sticks, kicks and blows. This witness has also stated that the deceased had complained of pain due to the assault. 5. The First Information Report as well as the statement of the eye-witness prima facie indicate that all the applicants were involved in assaulting the deceased Sachin. Respondent No. 2 had taken Sachin to the Rural Hospital on the same day and the medical certifcate indicates that he had suffered blunt trauma and was unable to walk. Sachin expired on 26th May, 2022. The Post Mortem report indicates that there were blebs over left posterior lumber and on right buttock laterally. The brain and lungs were congested and oedematous. The Post Mortem report indicates the cause of death as death due to Pulmonary Edema. Relying upon these fndings it is contended that the death was not homicidal. 6. It would be advantageous to refer to the decision of Gulam Hassan Beigh vs. Mohammad Maqbool Magrey and others, 2022 SCC Online SC 913, wherein the accused was discharged in - 4 - criappln2662.22.odt view of the opinion recorded in the Post Mortem report that the deceased had died due to cardiorespiratory failure. The Hon’ble Supreme Court has observed thus :- “ 31. ……. Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical offcer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recording of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor’s statement in court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical offcer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical offcer but of the Court. - 5 - criappln2662.22.odt 32. The prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical offcer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive t the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question. 33. Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the post mortem report on record. The High Court also overlooked such fundamental infrmity in the order passed by the trial court and proceeded to affrm the same. It is to be noted that these were the observations made while setting aside discharge order. Present application is for quashing of the First Information Report while the investigation is still at preliminary stage. It is to be noted that the powers under Section 482 of the Code of Criminal Procedure can be exercised inter alia to prevent abuse of process of the Court or to secure the ends of justice. It is well settled that these powers need to be exercised - 6 - criappln2662.22.odt cautiously. In the case of State of Haryana and others vs.Ch. Bhajan Lal and others, AIR 1992 Supreme Court Cases 335, the Hon’ble Apex Court has considered the scope of Section 482 of the Code of Criminal Procedure and has given certain illustrations when the Court can exercise powers under Section 482 of the Code of Criminal Procedure, which read thus :- In the backdrop of the interpretation of the “ 102. various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defned and suffciently channelised and infexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the frst information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the frst information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police offcers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. - 7 - criappln2662.22.odt (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police offcer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is suffcient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specifc provision in the Code or the concerned Act, providing effcacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fde and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 7. In the instant case, the allegations made in the First Information Report as well as the other material on record including the statement of eye-witness prima facie disclose that the applicants were involved in assaulting the deceased. Prima facie there appears - 8 - criappln2662.22.odt to be nexus between the death and the injuries allegedly inficted by the applicants. Whether the case would fall under Section 302 or 304 of the Indian Penal Code would be the subject matter of trial and cannot be a ground for quashing. 8. It is also to be noted that the respondent No. 2 has fled his affdavit stating that the First Information Report was lodged due to mis-understanding. He has given no objection to quash the First Information Report. 9. The applicants have sought to quash the First Information Report in view of the affdavit fled by the respondent No. 2. It is pertinent to note that the offence alleged against the applicants is not of private nature but it is an offence against the society. Hence, considering the principles laid down by the Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab and another, (2012) 10 Supreme Court Cases 303, the offence of such nature cannot be quashed only on the basis of no objection given by respondent No. 2 or in view of the statement made in the affdavit that the First Information Report was lodged due to mis- understanding. We may also refer to the judgment of the Hon’ble - 9 - criappln2662.22.odt Apex Court in case of State of Madhya Pradesh vs. Laxmi Narayan and others, (2019) 5 Supreme Court Cases 688, wherein it is observed in paragraph No. 13 that :- “13. Now so far as the reliance placed upon the decision of this Court in Shii, while quashing the FIR by observing that as the complainant has compromised with the accused, there is no possibility of recording a conviction and/or the further trial would be an exercise in futility is concerned, we are of the opinion that the High Court has clearly erred in quashing the FIR on the aforesaid ground. It appears that the High Court has misread or misapplied the said decision to the facts of the cases on hand. The High Court ought to have appreciated that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction. Such observations are presumptive and many a time too early to opine. In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong. 10. Considering the nature of the offence, which infact is an offence against the society, it would not be appropriate to quash the First Information Report in exercise of inherent powers under Section 482 of the Code of Criminal Procedure, albeit the no objection recorded by the respondent No. 2. Hence, the application is dismissed. - 10 - criappln2662.22.odt 11. We clarify that these observations are restricted to decision of this application and the trial Court shall decide the matter on its own merits without being infuenced by any of these observations. ( R. M. JOSHI) Judge dyb ( SMT. ANUJA PRABHUDESSAI) Judge
Arguments
364/2022 registered with Shrigonda Police Station, Dist. Ahmednagar for the offences punishable under Sections 143, 147, 148, 149, 302 and 504 of the Indian Penal Code. 3. The aforesaid crime was registered pursuant to the First Information Report lodged by respondent No. 2, Sagar Jadhav. The - 2 - criappln2662.22.odt allegations in the First Information Report are that on 22nd May, 2022, at about 7.00 pm, Sachin, the brother of respondent No. 2, had called respondent No. 2 at Kaikadi Galli. When respondent No. 2 went to Kaikadi Galli he saw his brother Sachin and one Vikas sitting near a Masjid. Sachin told him that the applicants had abused and assaulted him by means of wooden sticks and by kicks and blows on his chest and stomach. Respondent No. 2 has stated that his brother Sachin was having diffculty in walking and he was in pain due to the assault. There was congealed blood near his right hip bone. Respondent No. 2 took his brother Sachin to rural hospital at Shrigonda for treatment. He has further stated that on 26th May, 2022, he noticed that there were red patches at the place where the blood was congealed. He took his brother to the rural hospital at Shrigonda. The deceased was put on saline and given some injections. At about 2.00 pm they brought him home. The deceased was unable to walk and breath and was in pain. He has stated that his brother passed away on 26th May, 2-22 at about 4.00 pm. He, therefore, lodged the First Information Report against the applicants for assaulting his brother and causing his death. - 3 - criappln2662.22.odt 4. The statement of Vikas Jadhav, who is one of the eye-