High Court

Legal Reasoning

28-appln-3518-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3518 OF 20231.Kakamaharaj @ Kakasaheb Bibhishan UmbareAge: 53 years, Occu.: Agri.,R/o. Wanewadi, Tq. And Dist. Osmanabad.2.Maulimaharaj @ Vaishnav Kakasaheb UmbareAge: 20 years, Occu.: Agri.,R/o. Wanewadi, Tq. And Dist. Osmanabad... ApplicantsVersus1.The State of Maharashtra2.Lahu Shivaji ShindeAge: 39 years, Occu.: Agri. And Labourer,R/o. Wakharvadi, Tq. And Dist. Osmanabad. .. Respondents…Mr. Jaydeep Mane, Advocate for the applicants.Mr. A. R. Kale, APP for respondent No.1/State.Mr. Sushant Dixit, Advocate for respondent No.2.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 16 JUNE 2025ORDER :.Present application has been filed initially for quashing the FIRvide Crime No.333 of 2023 dated 06.08.2023 registered with DhokiPolice Station, Taluka and District Osmanabad and later on, by way ofamendment, for quashing the proceedings in Regular Criminal CaseNo.485 of 2024 (Charge-sheet No.171 of 2024), pending before thelearned Judicial Magistrate First Class, Osmanabad for the offences[1] 28-appln-3518-2023.odtpunishable under Section 305, 323, 324 read with Section 34 of theIndian Penal Code.2.Heard learned Advocate Mr. Jaydeep Mane for the applicants,learned APP Mr. A. R. Kale for respondent No.1/State and learnedAdvocate Mr. Sushant Dixit for respondent No.2.3.Learned Advocate appearing for the applicants has taken usthrough the contents of the charge-sheet including the FIR and the otherdocuments. He submits that even taking the case as it is and thedocuments it would show that no specific role has been attributed to thepresent applicants. Though applicant No.1 is the head of the Ashram, yetnone of the witnesses say that he had ever assaulted the deceased. Infact, the witnesses have stated that the deceased had committed theft ofmoney and had admitted it, but when it came to giving back the amount,he was avoiding. Of course, some of the witnesses have stated that theother accused had assaulted the deceased and then the deceased hadtaken out the amount, which he had concealed below his suitcase.That incident had taken place on 04.08.2023 and then some of thewitnesses say that the deceased had his breakfast with other personsaround 9.30 a.m. on 05.08.2023 and thereafter, he went outside toanswer the nature’s call, but did not return. He was searched by all thepersons in the Ashram and his dead body was then found in[2] 28-appln-3518-2023.odthanging position to a Tamarind tree. The applicants had no role to playin the entire episode, which would amount to abetment and, therefore,their involvement in the offence appears to be with some mala fideintention. It would be unjust to ask the applicants to face the trial.4.Learned APP strongly opposed the application and submits thatthe young boy of 14 years 8 months has committed suicide. That meanshe would have been given such kind of treatment at the Ashram, whichled him to commit suicide. Statement of witnesses under Section 161 aswell as Section 164 of the Code of Criminal Procedure have beenrecorded, which would show that after it was realized that amount fromone Manohar Vikhe and Rushikesh Raut’s suitcase/box were stolen bydamaging the latch, inquiry was made with all the students as to whohas committed the theft. Deceased had admitted the theft, but in orderto get the said admission, it appears that he was assaulted by certainpersons. The Ashram is run by applicant Nos.1 and 2 and even theinformant in the FIR states that deceased had told him that the presentapplicants used to assault him when he was not doing work in the field.Certainly, present applicants have role to play in the entire FIR and,therefore, this is not a fit case where this Court should exercise itspowers under Section 482 of the Code of Criminal Procedure. 5.Learned Advocate, who is appointed to represent the cause ofrespondent No.2/informant, submits that taking into consideration the[3] 28-appln-3518-2023.odtcontents of the spot panchanama and the situation that was at the spot,it would be doubtful as to whether deceased had committed suicide.Informant’s statement under Section 161 of the Code of CriminalProcedure has been recorded and in that statement, he has clearlystated that the FIR was not taken by the police as per his contention,rather the applicants and the Ashram had come with the story about theftat a later point of time. The applicants are the initial persons who appearto have exercised their influence just to get away with the allegations. Inspecific statement, the informant has stated that his son has beenmurdered and this can be seen from the contents of the postmortemreport also. The postmortem report shows that there were about sevenbodily injuries, especially multiple (more than 16 to 18 in numbers)contusions on the part of the body. This is nothing but the sign ofbeating that was given. There was internal injury corresponding to thebrain and, therefore, investigation ought to have been on the point ofmurder also. When the entire Ashram is run by the present applicants, itappears that the witnesses have been managed to say that it wasinitially the case of theft by the deceased and then the deceased wasassaulted. The informant specifically states that applicant No.1 used toask the deceased to work in the field of the Ashram and in case ofrefusal, the punishment was assault. Therefore, the deceased was notwilling to go back to the Ashram, however, the informant left him and at[4] 28-appln-3518-2023.odtthat time, he had requested applicant No.1 not to assault deceased.Under these circumstances, it would be premature to come to theconclusion that there is no prima facie case to stand as against theapplicants. 6.Here, it is to be noted that respondent No.2/informant at the timeof lodging the FIR has specifically stated that his son had committedsuicide by hanging. The FIR has been lodged on 06.08.2023. Then itappears that his statement under Section 164 of the Code of CriminalProcedure came to be recorded on 01.09.2023 by learned JudicialMagistrate First Class, Osmanabad. In his statement, he has tried togive the different story leading to the inference of offence under Section302 of Indian Penal Code. That means, the story which he had tried togive in his statement under Section 164 of the Code of CriminalProcedure was not there in his FIR. In spite of this difference we arethen required to consider as to whether case is made out for exercise ofpowers under Section 482 of the Code of Criminal Procedure. Here, asper the FIR, there were five accused persons and even at the time ofcharge-sheet, there were five accused persons. The prosecution hascome out with the case that the present applicants, who are the accusedNos.4 and 5, used to ask deceased to work in the field and they used toassault him in case of failure. In a way, the prosecution has tried tosegregate present two applicants from the alleged incident dated[5] 28-appln-3518-2023.odt04.08.2023 and 05.08.2023. The informant was not present in theAshram when the incident took place and, therefore, certainly, he isdependent on the information that was supplied to him by some otherperson. Therefore, we will have to consider the statements of all thewitnesses, who were inside the Ashram on that day. Statements ofwitnesses including the students who are minor and also the staff havestated about the alleged theft that was noted on 04.08.2023. It is statedthat amount of Rs.1100/- belonging to Manohar Vikhe and amount ofRs.900/- of Rushikesh Raut were stolen from box/suitcase by damagingthe latch. One witness Aditya says that Manohar then had raised theissue of theft of amount in presence of all the boys i.e. students, whenthey had gathered for Haripath. It is then stated that deceased PremShinde admitted that he has stolen the amount. The witnesses havethen stated that said Manohar had assaulted Prem with stick. When theywere insisting that the amount should be given, it is stated that Premwas avoiding. He was then assaulted by one Nande Maharaj with thehelp of sticks and slaps. Upon insistence, it is stated that Prem broughtamount of Rs.900/-, which he had concealed near his suitcase/box andhanded it over to Nande Maharaj. The said incident had taken place on04.08.2023 and then Prem committed suicide on 05.08.2023. Weconsider the case from another angle, which is now tried to be raisedand pointed out in view of the statement of the informant under Section[6] 28-appln-3518-2023.odt164 of the Code of Criminal Procedure. His statement has beenrecorded on 01.09.2023 and even at that time also it can be seen that hewas aware about what are the contents of the FIR, that means the storyabout suicide. Then in his statement under Section 164 of the Code ofCriminal Procedure on 01.09.2023, he states that it was in fact a murder.He has even raised suspicion over the medical officer, who hadconducted the autopsy. Here, from the contents of the charge-sheet itcan be seen that at no point of time the informant had approachedbefore a Court of law with a prayer for further investigation, addition ofSection/Offence etc. Mere statements in statement under Section 164 ofthe Code of Criminal Procedure will not be sufficient then. A positive actis required when the person wants to say that in fact the story is differentthan it was recorded. Another aspect to be noted is that though multipleinjuries have been noted in the postmortem report, yet the probablecause of death is stated to be “death due to asphyxia due to hanging”. Itappears that still a query was made by the investigating officer throughhis letter dated 23.08.2023 and the medical officer has informed thatdeath of Prem Lahu Shinde is due to hanging, thereby indicating that it isa suicide. When prima facie expert’s opinion is there, then to dislodgethe said opinion, there should be some strong evidence, but there are noefforts by the informant to fetch such extra evidence.[7] 28-appln-3518-2023.odt7.None of the witnesses have given a specific role to the applicantsin the entire episode. None of the witnesses have stated that just priorto the suicide, deceased Prem had met any of the applicants. If theapplicants had not even came in contact with deceased prior to hiscommission of suicide, then it cannot be stated that there is abetment ascontemplated under Section 305 of Indian Penal Code. We would like torely on the decision in Prakash and Ors. Vs. The State of Maharashtraand Ors., [MANU/SC/1397/2024], in which catena of judgments have beenconsidered and the Hon’ble Supreme Court lays down that unless thereis active role played by any accused, question of continuing with theprosecution for the offence under Section 306 of Indian Penal Code(here, in this case, it is Section 305 of Indian Penal Code, but the basicingredients are same) would not arise. The statements of variouspersons under Section 164 of the Code of Criminal Procedure are alsoon the same line and they are not assigning any specific role to thepresent applicants. It is unfortunate that a young boy has committedsuicide, but we are also guided by the legal principles and, therefore,continuation of trial as against the applicants would be an abuse ofprocess of law. This is a fit case where we should exercise our powersunder Section 482 of the Code of Criminal Procedure. Hence, thefollowing order:-[8] 28-appln-3518-2023.odtORDERI)Criminal Application stands allowed.II)The FIR vide Crime No.333 of 2023 dated 06.08.2023registered with Dhoki Police Station, Taluka and DistrictOsmanabad as well as the proceedings in Regular Criminal CaseNo.485 of 2024 (Charge-sheet No.171 of 2024), pending beforethe learned Judicial Magistrate First Class, Osmanabad for theoffences punishable under Section 305, 323, 324 read withSection 34 of the Indian Penal Code, stand quashed and set asideas against the present applicants i.e. (i) Kakamaharaj @Kakasaheb Bibhishan Umbare and (ii) Maulimaharaj @ VaishnavKakasaheb Umbare.III)Fees of learned Advocate, who is appointed to represent thecause of respondent No.2, is quantified at Rs.10,000/- (RupeesTen Thousand only) to be paid by the High Court Legal Services,Sub Committee, Aurangabad. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[9]