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Kalucharan Sudarshan Patra vs The State Of Maharashtra And Anr on 11 December, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 580 OF 2018

Mr.Kalucharan Sudarshan Patra
Aged about 53 years, Occ : Job,
Having address at jai Jagganath Chaal,
TATA Nagar, Behnd Vikas Hotel, ….Applicant
Govandi (West), Mumbai – 400 043 (First Informant)

V/S

1. The State Of Maharashtra
(At the instance of Sr.PI, Chembur
Police Station)

2. Mr. Kanucharan Shivram Panigrahy
Aged about 27 years,
Occ. : Home Business,
Keshav Patil Building, Room No.1,
Near Fish Market, Behind Ram Mandir,
Ghansoli Village, Navi Mumbai. … Respondents

Mr. Kushal Mor for applicant.
Shri N.B. Patil, APP for respondent No.1-State.
Mr. M.G. Shukla i/b Shri Vikas K. Singh for respondent No.2.

CORAM: N. J. JAMADAR, J.
RESERVED ON : 29th NOVEMBER 2019
PRONOUNCED ON : 11th DECEMBER 2019

JUDGMENT :

1. With the consent of the learned counsel for the parties,

heard finally at the stage of admission.

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2. The legality, propriety and correctness of an order, dated

26th July 2018, passed by the learned Additional Sessions Judge,

Greater Bombay, on an application for discharge (Exh. 6) in Sessions

Case No.353 of 2016, whereby, the said application came to be

allowed and the accused, the respondent No.2-herein, was discharged

from the prosecution for the offences punishable under Sectionsections 498A

and Section306 of the Indian Penal Code, 1860 (‘Penal Code’), is assailed in

this revision by the applicant-first informant.

3. The background facts can be summarized as under :-

[a] Mr.Kalucharan Sudarshan Patra, the first

informant, had a daughter, Shilpa (hereinafter referred

to as ‘the deceased’). The marriage of the deceased was

solemnized with the respondent No.2-Kanucharan

Shivram Panigrahy, on 14th February 2013, at

Hanumanpoli, Kolidaspur, Puroshottampur, Ganjaam,

Orrissa. A daughter, namely Shruti was born on 3 rd

April 2014. Thereafter, the deceased used to narrate to

the first informant and his family members that the

accused used to return home late in the night, was

given in to the vice of drinking liquor and gambling,

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and used to rake up quarrels with the deceased and

also beat her. The first informant and his family

members tried to reason with the respondent No.2.

However, there was no improvement in the behaviour

of the respondent No.2.

(b) On the night intervening 16th and 17th

December 2015, at about 2:40 a.m., the first informant

was informed on phone that the deceased had died.

The first informant, his wife and son reached in Inlak

Hospital, Mumbai. On being enquired, the respondent

No.2 informed that at about 1:15 a.m., when he

returned home, the deceased was found hanging by

nylon rope. The first informant lodged report leading to

registration of C.R.No.374/2015 for the offences

punishable under sections 306, 498A against the

respondent No.2. After completion of the investigation,

charge-sheet came to be lodged against the accused for

the said offences.

[c] On committal of the case to the Court of

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Sessions, the respondent No.2 filed an application

(Exh.6) under Sectionsection 227 of the Code of Criminal

Procedure (‘Code’). It was resisted by the prosecution.

(d) The learned Additional Sessions Judge, after

perusal of the material on record, including report

under Sectionsection 173 of the Code, was persuaded to allow

the application holding, inter-alia, that there was no

material to attract the provisions of Sectionsection 498A of the

Penal Code, as neither there was allegations of unlawful

demand nor such conduct attributed to the respondent

No.2, which would drive the deceased to commit

suicide. The learned Additional Sessions Judge was also

of the view that the material on record even did not

warrant framing of charge under Sectionsection 306 of the

Penal Code as there were nothing to show that the

respondent No.2 abetted the commission of suicide by

the deceased. Thus, finding the charge on both the

counts, against the respondent No.2, groundless, the

learned Sessions Judge discharged the respondent No.2.

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4. Being aggrieved by and dissatisfied with the aforesaid

finding and the impugned order, the first informant has invoked the

revisional jurisdiction of this Court.

5. Heard Shri Kushal Mor, the learned counsel for the

applicant, Shri M.G. Shukla, the learned counsel for the respondent

No.2. and Shri N.B. Patil, the learned APP for State. With the

assistance of the learned counsels for the parties, I have also perused

the material on record, especially the report under section 173 of the

Code and the documents annexed with it.

6. The learned counsel for the applicant submitted that the

impugned order suffers from perfunctory and casual consideration of

the material on record. The learned Additional Sessions Judge was

enjoined to look into the entire material on record and thereafter

arrive at a finding as to whether there was a ground to presume that

the respondent No.2 has committed the offences. The learned

Additional Sessions Judge, on the other hand, on a cursory

examination of the material recorded a finding that the charge was

groundless. The facts that, by order dated 17 th July 2017, the learned

Additional Sessions Judge had directed the investigating agency to

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carry out further investigation and record the statements of the

witnesses and the supplementary statements of the first informant

contained the allegations of unlawful demand and harassment not only

at the hands of the respondent No.2 but also his relatives, were

completely ignored by the learned Additional Sessions Judge, urged

the learned counsel for the applicant. In substance, according to the

learned counsel for the applicant, there was adequate material to

warrant framing of the charge against the respondent No.2 for the

offences punishable under Sectionsections 498A and Section306 of the Penal Code as

the presumption contained under Sectionsection 113A of the Evidence Act,

1872 was clearly attracted.

7. In opposition to this, the learned counsel for the

respondent No.2 submitted that the impugned order is wholly justified

and no interference is warranted in exercise of the revisional

jurisdiction. From the tenor of the first information report as well as

the statements of the witnesses, recorded immediately after the

registration of the first information report, it becomes evident that

there is no whisper about any unlawful demand nor of any conduct

attributable to the respondent No.2 which drove the deceased to

commit suicide. In fact, the investigating agency, in its report, dated

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28th August 2018, submitted to the Sessions Court, post direction for

further investigation, has arrived at the conclusion that the omnibus

allegations made by the first informant in supplementary statement

were unworthy of credence. Thus, the learned Additional Sessions

Judge has correctly exercised the jurisdiction to discharge the

respondent No.2, urged the learned counsel for the respondent No.2.

8. To begin with, it is trite that at the stage of the framing

of the charge, the material on record is required to be scrutinized so

as to ascertain whether there is a prima-facie case which raises a

strong suspicion against the accused of having committed the offences

arraigned against him. The examination of the material is not for the

purpose of finding out as to whether it is sufficient to entail the

conviction. If the report under Sectionsection 173 and the documents annexed

with it and the material on record leads to an inference that there is

a ground for presuming that the accused has committed an offence,

the Court would be justified in framing the charge. Conversely, if the

material indicates that the charge is wholly groundless, an order for

discharge under Sectionsection 227 of the Code can be passed.

9. On the aforesaid touchstone, if the material on record is

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considered, it becomes evident that the F.I.R. is conspicuously silent

about the alleged unlawful demand and the conduct of the accused

which would drive the deceased to commit suicide. The report, on the

contrary, indicates that the deceased was distressed on account of the

fact that the accused returned home late, consumed liquor and used

to rake up quarrels with the deceased. It was further alleged that the

accused was also given in to the vice of gambling. Apart from these

vices, nothing was attributed to the accused so as to bring his conduct

within clauses (a) and (b) of the Explanation to Sectionsection 498A of the

Code. Evidently, there was no reference to any demand emanating

from the accused, much less an unlawful demand for any property,

and the consequent harassment in order to coerce the deceased to

meet such demand.

10. Two factors have significant bearing on the potency of the

indictment against the accused. One, the visit of Simanchal Patra, the

brother of the deceased, to the house of the deceased on the night of

occurrence 16th December 2015. Two, the telephonic conversation

which both the deceased and accused had with the wife of the first

informant at about 11:00 p.m. Simanchal Patra, the brother of the

deceased, did not notice anything unusual or untoward during the

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course of his visit to the deceased few hours prior to the occurrence.

Nor the first informant and his wife sensed anything amiss when the

deceased and accused spoke with them at about 11:00 p.m. on 16 th

December 2015, a couple of hours before the alleged occurrence. It is

not the case of the first informant or any of the prosecution witnesses

that even on the date preceding the night of occurrence, the deceased

had made any grievance which would fall within the mischief of

either Sectionsection 498A or Sectionsection 306 of Penal Code.

11. The fact that the accused was given in to the vice of

drinking liquor and gambling, even if taken at par, would not

constitute abetment within the meaning of Sectionsection 107 of the Penal

Code. The learned Additional Sessions Judge was, thus, justified in

recording a finding that there was no material to demonstrate that a

prima-facie case for the offence of cruelty or abetment to commit

suicide was made out.

12. The reliance placed by the learned counsel for the

applicant on the supplementary statement of the first informant

recorded on 23rd August 2017, post the direction for further

investigation, does not advance the cause of prosecution. The

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supplementary statement which came to be recorded after about one

and half years of the occurrence, by its very nature, is of inherently

weak character. In the said statement, omnibus allegations were made

against the accused including that of unlawful demand.

13. Whether the first informant had an opportunity to make

statements after lodging the FIR? Evidently, the supplementary

statements of the first informant were recorded on 5 th April 2016 and

19th June 2016. In the said statements also no allegations of unlawful

demand were made against the accused. The allegations to bring the

conduct of the accused within the tentacles of the offences punishable

under Sectionsections 498A and Section306 of the Penal Code were made, for the

first time, in the statement which was recorded on 24 th June 2017,

after about one and half years of the occurrence. There was no

plausible reason not to make such allegations at the first possible

opportunity when the first informant had visited the hospital where

the deceased was shifted to on the very night of the occurrence and

the first information report came to be registered on 17 th December

2015, itself.

14. In the aforesaid backdrop, the learned Additional Sessions

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Judge was within his rights in evaluating the entire material on

record and then arriving at the conclusion that the charge against the

accused appeared to be groundless. Thus, in exercise of the revisional

jurisdiction, I am not impelled to interfere with the order passed by

the learned Additional Sessions Judge. Resultantly, the revision

application deserves to be dismissed. Hence, the following order :

ORDER

The revision application stands dismissed.

[ N.J. JAMADAR, J. ]

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