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Kesharbai Wd/O Sakharam Barbinde … vs The State Of Maharashtra & Anr on 23 February, 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.463 OF 2016

1. Kesharbai wd/o Sakharam Barbinde
Age; 65 yrs, Occ: Household,

2. Rajendra @ Raju s/o Sakharam Barbinde
Age: 26 yrs, Occ: Labour,

Both R/o. Antarwala, Post-Kajala,
Tq. Dist. Jalna. APPLICANTS

VERSUS

1. The State of Maharashtra.

2. Ram s/o. Ashruba Gavhad
Age: 31 yrs, Occ: Agri.,
R/o.Patoda, Post-Patoda,
Tq.Mantha, Dist. Jalna. RESPONDENTS


Mr.S.S.Panale, Advocate for the applicants
Mrs.P.V.Diggikar, APP for the Respondent
No1./State

CORAM: S.S.SHINDE
K.K.SONAWANE,JJ.

Reserved on : 20.02.2017
Pronounced on : 23.02.2017

JUDGMENT: (Per S.S.Shinde, J.):

1] Heard the learned counsel appearing

for the applicants. He submits that the

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applicants are residing at Antarwala, Post

Kajala, Taluka and District Jalna. The

learned counsel appearing for the applicants

invites our attention to the copies of the

card issued to the applicants by the Election

Commission of India and also copy of the

Aadhar card issued in favour of applicant no.

1. It is submitted that son of applicant no.1

namely Ankush was married with Vandana,

sister of respondent no.2, in the year 2006.

The couple is blessed with daughter Gauri 6

years old and son Gaurav 4 years old.

2] It is submitted that son of

applicant no.1 Ankush came to reside at

Aurangabad and also purchased a plot and

constructed his own house at Aurangabad. It

is submitted that on 26th August, 2015, Ankush

and Vandana were proceedings towards the

village Antarwala at that time at about 10.45

a.m. when Ankush stopped the vehicle on

Aurangabad-Jalna Road for answering nature’s

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call, Vandana was given dash by one truck and

in the said accident, she sustained grievous

injuries to her head and Vandana succumbed to

the said injuries on 27.08.2015. It is

submitted that the applicants are nothing to

do with the accidental death of Vandana. The

death of Vandana was accidental and not

suicidal. The First Information Report itself

does not disclose any material prima facie to

meet the ingredients of the offence

punishable under Section 306 of the Indian

Penal Code. There is no act or overt act or

omission or any illegal act on the part of

the present applicants, which has abetted the

suicide of Vandana. It is submitted that even

if the allegations in the FIR are read in its

entirety, there is no specific act attributed

on the part of the applicants, which would

amount to abetment as contemplated under

Section 107 of the IPC. There is no

instigation, conspiracy or intentional aid to

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the commission of suicide by Vandana at the

instance of the applicants. The entire

documents placed on record will show that the

applicants were residing separately from

deceased Vandana, therefore, the applicants

cannot be accused for abetting the suicide or

causing ill-treatment of any kind to Vandana.

The applicants are falsely implicated in the

alleged commission of offence. The

allegations are omnibus in nature, therefore

the FIR qua applicants deserves to be quashed

and set aside.

3] On the other hand, the learned APP

appearing for the respondent-State relying

upon the investigation papers submits that,

during the course of investigation, the

Investigating Officer has recorded the

statements of various witnesses and they have

stated that along with other accused, the

applicants have also harassed and ill-treated

the sister of respondent no.2. There are

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specific allegation even against the

applicants. Apart from Section 306 of the

IPC, even Section 498A is invoked. There is

sufficient material collected during the

course of investigation by the Investigating

Officer and the trial can proceed on the

basis of the said material.

4] The learned counsel appearing for

respondent no.2 submits that in fact sister

of respondent no.2 i.e. wife of Ankush, is

murdered and is not the case of the

accidental death. He submits that it is

settled law that the allegations in the FIR

will have to be taken as it is and can be

tested only during trial, and therefore, when

there are specific allegation against even

the applicants, that the applicants were

suspecting chastity / character of the sister

of respondent no.2, and therefore, the

ingredients of Section 498A are clearly

attracted. Even there are allegations that

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the applicants not only suspected her

character/chastity, however, abused her and

extended threats that they will kill her.

Therefore, he submits that, this Court may

not entertain the application for quashing of

the FIR.

5] It is submitted that in the year

2015, the deceased Vandana discovered that

her husband Ankush was having an extra

marital affair. He was addicted to liquor.

When respondent no.2 visited Vandana in his

matrimonial home on 24th August, 2015, she

stated that applicant no.1 Kesharbai had

instigated Ankush to beat Vandana by

revealing the occurrences prior to his coming

home. She further stated that applicant no.2

had also instigated Ankush likewise and have

also taken away the children in his room on

the upper floor in order to facilitate Ankush

to have his revenge against Vandana. On

24.08.2015, Ankush had beaten her badly on

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instigation of the applicants. It is

submitted that, applicants are managed to

produce certain documents to demonstrate that

they are resident of Antarwala, Taluka and

District Jalna. However, they are residing at

Bajrang Nagar, Chikalthana, Aurangabad.

6] We have heard the learned counsel

appearing for the applicants, learned APP

appearing for the respondent – State and the

learned counsel appearing for respondent

no.2. With their able assistance, we have

perused the grounds taken in the application,

annexures thereto, the contents of the FIR

and the charge-sheet and its accompaniment

made available for perusal by the learned

APP. Upon careful perusal of the statements

of the witnesses recorded by the

Investigating Officer, there are allegations

against the present applicants, the

ingredients of Section 498 of the IPC are

clearly attracted, the Investigating Officer

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after full-fledged investigation, has filed

charge-sheet.

7] In that view of the matter, in our

opinion, the Investigating Officer has

collected sufficient material during the

course of investigation. In this Application,

there is no challenge to the charge-sheet and

only the FIR is questioned by the applicants.

Be that as it may, in view of the exposition

of law by the Supreme Court in the case of

Bhaskar Lal Sharma and another Vs. Monica and

others1 wherein in para 11 of the judgment it

is held that the facts, as alleged, in the

FIR will have to be proved which can be done

only in the course of a regular trial. The

appreciation, in a summary manner, of the

averments made in the FIR would not be

permissible at the stage of quashing of FIR

and the facts stated will have to be accepted

as they appear on the very face thereof. In

1 (2014) 3 SCC 383

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that view of the matter, we are not inclined

to quash the First Information Report, hence

the Application stands rejected.

8] However, we make it clear that in

case the applicants wish to file application

for discharge before the concerned Court and

if charge is already not framed, the

rejection of this application shall not

construed as an impediment to the applicants

to avail said remedy. However, we make it

clear that if applicants are desirous to file

application for discharge, they can avail the

said remedy by way of filing appropriate

application within three weeks from today. In

case such application is filed, the concerned

Court shall decide the same in accordance

with law on its own merits within 6 weeks

from filing such application.

However, we make it clear that, in

case an appropriate application is not filed

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within three weeks from today, after three

weeks the concerned Court shall not entertain

the application of the applicants praying

therein for discharge. The observations made

hereinabove are prima facie in nature.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC




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