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Somnath S/O Ashok Darekar vs The State Of Maharashtra And Anr on 3 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.4152 OF 2016

Somnath s/o Ashok Darekar,
Age-30 years, Occu:Service,
R/o-Shiradhon, Tq-Nagar,
Dist-Ahmednagar.
…APPLICANT
VERSUS

1) The State of Maharashtra,
Through Investigation Officer,
Nagar Taluka Police Station,
Tq-Nagar, Dist-Ahmednagar,

2) Rahul Balu Gore,
Age-24 years, Occu:Service,
R/o-Ruichattisi, Tq-Nagar,
Dist-Ahmednagar.
…RESPONDENTS


Ms. Pradya Talekar Advocate i/b. Talekar
Associates for Applicant.
Mr.D.R. Kale, A.P.P. for Respondent No.1.
Mr.N.V. Gaware Advocate for Respondent No.2.

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

DATE OF RESERVING JUDGMENT : 20TH APRIL, 2017.

DATE OF PRONOUNCING JUDGMENT: 3RD MAY, 2017.

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JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. By way of filing the present Application

under Section 482 of the Code of Criminal

Procedure, the Applicant has prayed that the First

Information Report bearing Crime No.0070 of 2016,

registered with Nagar Taluka Police Station, at

Ahmednagar on 13th March, 2016, for the offences

punishable under Section 306, 498-A read with 34

of the Indian Penal Code, may be quashed and set

aside.

3. Respondent No.2 herein – Rahul Balu Gore,

who is brother of deceased Rupali, lodged First

Information Report (for short “FIR”) alleging

therein that the marriage between Bhausaheb Ashok

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Darekar, resident of Shiradhon and Rupali was

solemnized on 22nd February, 2015. Out of the said

wedlock, the couple was blessed with one child,

namely Vedant. Husband of Rupali, namely Bhausaheb

is serving in military and at present he is

assigned duties at Secunderabad. His sister Rupali

was serving in Postal Department at Ruichattisi.

In her matrimonial home, mother-in-law Nanda Ashok

Darekar and father-in-law Ashok Gangadhar Darekar

were residing, and her husband used to come to the

matrimonial home after three months by availing

leave. Brother-in-law of Rupali, namely Somnath

Ashok Darekar i.e., Applicant herein, is also

recruited in military services and at present he

is undergoing his training in M.I.R.C. Ahmednagar.

He used to visit matrimonial home on holidays.

. After marriage, Rupali was properly

treated by the members of matrimonial house for

about 3 to 4 months. Thereafter whenever her

husband Bhausaheb used to visit the matrimonial

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home and talk to her on cell phone/mobile, he used

to say her that he does not like Rupali and she

has some affair with somebody else. An accused

Bhausaheb used to tell her that, his father has

performed his marriage against his wish and used

to harass, insult and assault Rupali. He used to

tell that Rupali should not visit any relatives,

and his parents and brother used to support

Bhausaheb. When ever Rupali visited her parents

house, she used to tell about ill-treatment given

to her by the accused.

. Five months prior to lodging of the FIR,

father-in-law of Rupali, namely Ashok Darekar

asked/demanded Rupees One Lakh through Rupali for

securing job to brother-in-law Somnath Ashok

Darekar i.e. Applicant herein. Though the

informant and his family members were not happy

with such demand, however so as to avoid any

harassment to Rupali, they paid an amount of

Rs.1,00000/- (Rupees One Lakh) to father-in-law of

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Rupali. Thereafter father-in-law of Rupali further

asked for Rs.50,000/- (Rupees Fifty Thousand).

However, since the family of the informant had no

money, they could not fulfill the further demand

of Rupees Fifty Thousand by the father-in-law of

Rupali. By keeping grudge of non-fulfillment of

demand of Rupees Fifty Thousand, all the accused

used to mentally and physically harass Rupali.

When Rupali was admitted in the hospital for her

delivery, instead of sending her at her parents

house, from the hospital itself Rupali was taken

to the matrimonial home. When parents of the

informant visited the matrimonial house so as to

bring Rupali to their house, they were abused and

sent back by the accused. Then one month after

delivery, parents brought Rupali to their house

and thereafter she stayed there for about two

months. On the day of ‘Sankrat’ festival, her

husband and father-in-law visited the house of the

informant and abused and assaulted him. On 17th

January, 2016 when maternal uncle of the

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informant, namely Annasaheb Vithoba Jagtap

resident of Watephal, one other relative Goraksh

Kondiba Gund and father of the informant when

visited the house of accused so as to give them

understanding to treat Rupali properly, there was

no proper treatment to them.

4. It is further stated that on 12th March,

2016 in between 12.30 to 1.00 p.m. cousin father-

in-law of Rupali, namely Mininath Darekar called

the informant on his mobile and told that Rupali

is having severe stomach pain and therefore she is

admitted in Deepak Hospital and informant should

immediately come to the said hospital. When the

informant and his mother went to Deepak Hospital,

they saw that treatment of Rupali was going on in

I.C.U. of the said hospital and they were given

understanding by the father-in-law of Rupali that,

due to stomach ache Rupali is admitted in the

hospital. On enquiry with the doctor, they learnt

that Rupali had consumed poisonous substance and

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therefore the informant with his mother stayed

there in the said hospital on the said night.

Father of Rupali also came to the hospital. When

Rupali was under treatment in the said hospital,

she died on 13th March, 2016 at about 00.15 hours.

After postmortem, she was cremated at Shiradhon.

With the above allegations the FIR was lodged by

Respondent No.2 in Nagar Taluka Police Station,

Ahmednagar, with grievance that all the accused

harassed and ill-treated Rupali by suspecting her

chastity and thereby they all abetted and

instigated Rupali to commit suicide.

5. Hence this Application is filed by one of

the accused i.e. Somnath Ashok Darekar, brother-

in-law of Rupali, for quashing the First

Information Report.

6. Learned counsel appearing for the

Applicant submits that even if the allegations in

the FIR are taken at its face value and read in

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its entirety, prima facie an alleged offences have

not been disclosed against the Applicant. She

invited our attention to the allegations in the

FIR and submits that, there are general

allegations without attributing specific overt act

qua Applicant and therefore FIR deserves to be

quashed so as to prevent the abuse of process of

law. She further submits that, as per the

allegations in the FIR, Rupali was properly

treated for 3 to 4 months after the marriage,

which was solemnized on 22nd February, 2015, and,

four months time would get over in the month of

June, 2015. She further submits that the Applicant

at no point of time had subjected deceased Rupali

to cruelty and not caused any abetment for alleged

commission of suicide. Since 14th October, 2015

the present Applicant is in training center and

the question of visiting the matrimonial house as

alleged in the FIR on every holiday, does not

arise, and there was no reason for the Applicant

to cause any ill-treatment or harassment to

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Rupali. It is submitted that since the date of

joining his service, the Applicant had not visited

the house except on 13th March, 2016, in order to

attend funeral of Rupali. Learned counsel invites

our attention to the letter issued by Lt.

Col./Major, Officiating Commanding Officer,

Infantry Training Battalion, M.I.R.C., Ahmednagar,

which clearly shows that the Applicant was

physically present in the establishment wherein he

is undergoing training, from 18th January, 2016 to

13th March, 2016 and on 13th March, 2016 at 02.55

hours he proceeded on an emergency leave. Learned

counsel further invites our attention to the

contents of out-pass issued by the concerned

authority, wherein it is stated that the Applicant

was permitted to go to Ahmednagar City from 12.30

hours to 17.00 hours on 20th July, 2016.

7. Learned counsel invited our attention to

the additional affidavit filed by the Applicant in

continuation of the main Application, and submits

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that the Applicant reported to training on 15th

October, 2015 at Infantry Training Battalion,

M.I.R.C., Pin 900476, C/o-56 APO and still he is

undergoing training. All the candidates who are

undergoing training at Infantry Training

Battalion, M.I.R.C. Pin 900476, C/o-56 APO. No

trainee is permitted to leave the

campus/headquarter of Infantry Training Battalion,

M.I.R.C., Pin 900476, C/o-56 APO unless he obtains

out pass from Col. Infantry Training Battalion,

M.I.R.C. The Applicant was not allowed to leave

the headquarter/premises of training center except

on two occasions after the Applicant reported on

duty at M.I.R.C., Ahmednagar. He was allowed to

leave the headquarter/premises of training center

so as to proceed on emergency leave once on 13th

March, 2016 at 02.55 hours and again on 20th July,

2016. It is submitted that since the Applicant was

under training, he was not allowed to hold mobile

or to have an access to telephone during training

period and as such it was not possible for him to

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hold out threats to deceased Rupali on mobile. The

allegation that Applicant used to visit his house

at Shiradhon at every week end as well as further

allegation that the Applicant used to give threats

to deceased on mobile, are far from truth and

nothing but foul play. It is submitted that since

the Applicant is made accused, he was required to

obtain bail, the Major/adjutant, Infantry Training

Battalion, M.I.R.C. has called for a fresh

character verification report vide communication

dated 2nd January, 2017 addressed to District

Magistrate, Ahmednagar. It is submitted that Col.

Infantry Training Battalion, M.I.R.C. had already

received verification roll from the District

Magistrate, Ahmednagar on 16th April, 2016, a

fresh character verification roll is again called

for. The Applicant is apprehending from discharge

of services once fresh verification roll is

received. It is submitted that in case the FIR is

not quashed, it is very likely that the Applicant

may loose his job/employment in military.

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8. Learned counsel further submitted that

the Investigating Officer has already filed

charge-sheet in respect of other accused. The

Supplementary statement of the informant i.e.

Respondent No.2 is recorded on 14th March, 2016.

She invites our attention to the contents of the

said supplementary statement and submits that even

if the said statement is carefully perused, at the

highest the allegation is that Rupali was

possessing two mobile numbers having SIM Card

Nos.9096203304 and 9921670900, and as per

allegations, accused used to make her phone call

and she used to record the conversation and said

conversation was heard by Respondent No.2 one and

half month prior to commission of suicide by

Rupali. It is submitted that as stated in the

affidavit, the Applicant was not allowed to

possess mobile or had access to telephone during

the training period and as such it was not

possible for him to hold out threats against

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deceased Rupali on mobile. It is submitted that

though the charge-sheet is filed as against other

accused, the Investigating Officer has not

collected any record or has not included name of

any witness from the telephone department so as to

prove the allegations made by the informant in the

supplementary statement. It is submitted that it

is impossible to believe and comprehend that the

Applicant was in need of an amount of Rupees One

Lakh for securing job in military. It is submitted

that on careful perusal of the allegations in the

FIR, it is abundantly clear that there was no any

demand of Rupees One Lakh by the Applicant. Those

allegations are made against the father of the

Applicant. It is submitted that once the FIR was

registered, there was no need to again record

supplementary statements of the informant. It is

submitted that the Applicant is no way concerned

with such alleged demand of money.

9. Learned counsel submitted that as a

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matter of fact the Applicant hardly stayed for 2

to 3 months in his house i.e. matrimonial home,

from the month of June, 2015 to October, 2015,

before he joined the training in M.I.R.C.,

Ahmednagar. Our attention is invited to the

document placed on record along with the

compilation to the Application at page No.23

titled as “Enrollment in the Army”. Learned

counsel invites our attention to the contents of

the said letter and submits that, as a matter of

fact the Applicant was intimated that the

Applicant is selected and his name appears in the

merit list for enrollment as soldier Tdn

(Washerman) in Mechanical Infantry Regiment based

on CEE held on 30th August, 2015. Thereafter

Applicant was selected for the said post in the

month of August, 2015 and he joined the training

on 15th October, 2015. It is submitted that, as

alleged in the FIR, till June, 2015, Rupali was

treated in proper manner. Thereafter the Applicant

stayed in the matrimonial home from July, 2015

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till he joined training in the month of October,

2015. It is submitted that during the said period

the Applicant was busy in preparation of

examination for the said post and therefore the

allegations in the FIR implicating the Applicant

in alleged offences are inherently improbable,

unbelievable and absurd.

10. Learned counsel further invites our

attention to the second supplementary statement of

informant recorded on 19th September, 2016, and

submits that when the FIR was registered on 13th

March, 2016 and thereafter on 14th March, 2016,

supplementary statement of the informant was also

recorded, there was no reason for the

Investigating Officer to again second time record

supplementary statement of the informant on 19th

September, 2016, that too after lapse of five

months period from registration of the First

Information Report and recording of first

supplementary statement. It is submitted that the

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informant and the Investigating Officer were bent

upon and determined to implicate the Applicant by

hook or by crook so as to unnecessarily harass him

and with a view that the Applicant should loose

his job. In the said supplementary statement, it

is mentioned that even the Applicant along with

other accused demanded an amount of Rupees One

Lakh for securing job in military service though

there was no such allegation in the First

Information Report or in supplementary statement

recorded on 14th March, 2016. It clearly shows

mala fide intention of the informant and

Investigating Officer to unnecessarily

implicate/involve the Applicant in alleged

commission of offences. It is submitted that the

Applicant is no way involved either in the demand

of money or acceptance of the same or ill-treating

or harassing Rupali. He is innocent and serving in

military services with determination and the

intention to render services to the Nation, and

the allegations in the supplementary statement

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recorded on 19th September, 2016, is calculated

attempt with a vengeance and malafide intention to

ruin/spoil the career of the Applicant and

therefore, keeping in view the exposition of law

by the Supreme Court in the case of State of

Haryana V/s Bhajan Lal1, the First Information

Report deserves to be quashed.

11. It is submitted that there is also

allegation that along with other accused the

Applicant instigated and abetted in commission of

suicide by Rupali. Learned counsel invites our

attention to the provisions of Section 107 and 306

of the I.P. Code and submits that, since the

Applicant was undergoing training after joining

the M.I.R.C. from October, 2015, till the alleged

incident of suicide had taken place and it is only

on 13th March, 2016, one day leave was granted to

him as a special circumstance, to attend funeral

of Rupali, by any stretch of imagination

1 AIR 1992 SC 604

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ingredients of Section 107 of the I.P. Code are

not attracted, in as much as within the proximity

of the alleged commission of suicide, no any

specific overt act is attributed to the Applicant

to suggest his involvement in an alleged incident

of commission of suicide by Rupali either by way

of instigation, abetment, or entering into

conspiracy with an intention that she should

commit suicide. At the cost of repetition, it is

submitted that the Applicant was undergoing his

training since October 2015, and alleged incident

had taken place on 13th March, 2016. During

aforementioned period the Applicant had no

opportunity to visit house. In support of

aforesaid contentions, the learned counsel placed

reliance on law laid down by the Supreme Court in

the case of Gangula Mohan Reddy vs. State of

Andhra Pradesh2, Madan Mohan Singh vs. State of

Gujarat and another3, S.S. Cheena vs. Vijay Kumar

2 (2010) 1 S.C.C. 750
3 (2010) 8 S.C.C. 628

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Mahajan and another4 and also upon the ratio laid

down in the case of Dilip Ramrao Shirasrao and

others vs. State of Maharashtra and another

(Criminal Application [APL] No.332 of 2016)

delivered on 5th August, 2016 by the Bombay High

Court, Bench at Nagpur.

12. It is further submitted that Respondent

No.2 has filed the affidavit in reply and it is

stated in the said affidavit in reply that the

Investigating Officer has filed the charge-sheet

and now Section 304-B of the I.P. Code is also

added. In that respect, she invites our attention

to the provisions of Section 304-B of the I.P.

Code and submits that if the said provision is

carefully perused, so as to attract an ingredients

of said Section, it is necessary to show that soon

before death deceased was subjected to cruelty or

harassment by her husband or any relative of her

husband for, or in connection with any demand for

4 (2010) 12 S.C.C. 190

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dowry, then only such death can be called “dowry

death”, and such husband or relative shall be

deemed to have caused such death. It is submitted

that since October, 2015 till the alleged

incident, the Applicant was undergoing continuous

training in M.I.R.C., Ahmednagar. It is evident

from the certificate issued by the competent

authority that except leave granted on 13th March,

2016 to attend the funeral of Rupali and on

another occasion on 20th July, 2016, the

Applicant continuously attended the training, and

therefore he had no occasion to subject Rupali to

cruelty or harassment soon before her death or

prior to it. In support of her aforesaid

contention, learned counsel invites our attention

to the reported Judgment in the case of Satvir

Singh and others vs. State of Punjab and another5.

13. Therefore, relying upon the averments in

the Application, grounds taken therein, contents

5 (2001) 8 S.C.C. 633

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of the short affidavit and all other documents

placed on record, learned counsel appearing for

the Applicant submits that the Application

deserves to be allowed.

14. The learned A.P.P. appearing for the

State, relying upon the investigation papers and

in particular FIR and supplementary statements of

the informant recorded on 14th March, 2016, and

19th September, 2016, submits that an ingredients

of alleged offences have been clearly attracted on

reading the allegations in its entirety. It is

submitted that an allegations in the FIR will have

to be taken as it is and can be tested only during

trial. It is submitted that the Investigating

Officer has recorded statements of various

witnesses during the course of investigation and

also collected incriminating material on which

basis trial can proceed. Therefore, he submits

that the Application may be rejected.

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15. Learned counsel appearing for Respondent

No.2 submits that, in view of the Judgment of the

Supreme Court in the case of Bhaskar Lal Sharma

and another vs. Monica and others6, the allegations

in the FIR and also in the supplementary

statements of the informant will have to be taken

as it is and appreciation of those allegations or

statements of the witnesses even in a summary

manner is not permissible when there is a prayer

for quashing the FIR. It is submitted that while

exercising jurisdiction under Section 482 of the

Code of Criminal Procedure, this Court is not

supposed to undertake exercise of appreciation of

the evidence. In support of aforesaid contentions,

he placed reliance on the ratio laid down in the

case of State of Bihar vs. Murad Ali Khan7. Learned

counsel further submits that in the present case

the charge-sheet as against other co-accused is

already filed. The Investigating Officer has

collected sufficient incriminating material. The
6 (2014) 3 S.C.C. 383
7 (1988) 4 S.C.C. 655

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statements of witnesses have been recorded. He

invites our attention to the affidavit in reply

filed on behalf of Respondent No.2 and submits

that the present Application under Section 482 of

the Code of Criminal Procedure is not

maintainable. The police authorities on 24th

November, 2016 have filed the charge-sheet and

during the investigation offence punishable under

Section 304-B of the I.P. Code for dowry death is

also added. It is submitted that the accused

administered poison to Rupali. Upon reading the

allegations in the FIR and two supplementary

statements of the informant, prima facie those

allegations make out case against present

Applicant. It is submitted that one of the reason

for harassing the deceased was illegal demand of

money for securing employment to the Applicant. It

is submitted that in breach of rules and

discipline in military, the Applicant visited his

house and extended threats to deceased Rupali. The

accused persons are highly influential persons and

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bears major political background. Accused No.1 was

not arrested for quite long period. The accused

have threatened the witnesses and they have made

an attempt to tamper the prosecution evidence. The

conduct of the accused persons has adversely

affected the investigation and there will be no

fair trial. Therefore, relying upon the averments

in the said affidavit in reply, annexures thereto

and also investigation papers and accompaniments

of charge-sheet, learned counsel submits that the

Application may be rejected.

16. We have given careful consideration to

the submissions of the learned counsel appearing

for the Applicant, learned A.P.P. appearing for

the State and learned counsel appearing for

Respondent No.2, with their able assistance

perused the averments in the Application, grounds

taken therein, annexures thereto, investigation

papers, the copy of the charge-sheet and

accompaniments, filed against other co-accused and

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also the affidavit filed by the Applicant and

reply filed by Respondent No.2 and the Judgments

of the Supreme Court and the High Court cited

during the course of arguments.

17. At the outset, it would be relevant to

reproduce herein below the allegations against the

Applicant in the First Information Report:

“:ikyh fgpk fnj lkseukFk v’kksd njsdj gk i.k

fru efgU;kiqohZ fefyVªh e/;s Hkjrh kysyk vlwu l/;k

R;kps ,e-vk;-vkj-lh- ;sFks Vªsfuax pkyw vlwu rks lqVVhP;k

fno’kh ?kjh ;sr tkr vlrks-

lqekjs ikp efgU;kiqohZ frP;k lkl;kus vkEgkl

frpk fnj lkseukFk v’kksd njsdj ;kP;k uksdjhlkBh

:ikyh ekQZr ,d yk[k :i;s ekfxrys gksrs vkeph bPNk

ulrkauk :ikyhyk kl udks Eg.kwu vkEgh R;kauk ,d

yk[k :i;s fnysys vkgsr-

v’kkizdkjs ekh cgh.k lkS- :ikyh HkkÅlkgsc njsdj

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o; 22 o”kZ] jk- f’kjkks.k rk- uxj] ft- v- uxj fg

frP;k lkljh ukanr vlrkuk frpk uojk HkkÅlkgsc

v’kksd njsdj] lklw uank v’kksd njsdj] lkljs v’kksd

xaxk/kj njsdj] fnj lkseukFk v’kksd njsdj loZ jk-

f’kjkks.k rk- ft- v- uxj ;kauh frpk iS’kklkBh osGksosGh

‘kkfjjhd o ekufld NG dsysyk vlwu frP;k uo;kus

pkjh×;koj la’k; ?ksowu frpk NG d:u frl vkREkgR;k

dj.ksl izo`Rr dsys Eg.kwu ekh cgh.k :ikyh fgus fn-

11-03-2016 jksth jkh 09-00 okts iqohZ frP;k lkljh

fo”kkjh vkS”k/k fioqu vkRegR;k dsyh vkgs Eg.kwu eks

:ikyhpk uojk] fnj] lklq] lkljs ;kapsfo:/n dk;ns’khj

fQ;kZn vkgs-”

18. If the contents of the FIR are carefully

perused, the allegations as against the Applicant

are general in nature and without attributing any

specific overt act qua the Applicant either in

relation of demand of money or cruelty, harassment

or ill-treatment. There are allegations against

father of the Applicant that, he was demanding

Rupees One Lakh through Rupali from the informant,

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and the informant paid the said amount to him.

Even if the allegations in the supplementary

statement which was recorded on 14th March, 2016

are taken into consideration, at the highest said

allegations would show that the informant managed

to collect the amount of Rupees One Lakh and paid

it to the father of the Applicant. It is stated in

the said supplementary statement that the accused

used to extend threats to Rupali through

telephonic message on mobile. However, upon

careful perusal of the material collected by the

Investigating Officer, there is no such record

collected or available in the nature of recording

of conversation of the accused with Rupali on

mobile. It is true that on 19th September, 2016,

second supplementary statement of the informant is

recorded after about six months from registration

of the FIR, and in the said supplementary

statement, along with other accused allegation is

made against the Applicant that he also demanded

Rupees One Lakh. Even in the said supplementary

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statement, there is no any specific act attributed

qua the Applicant and there is general allegation

that along with other accused, Applicant also

demanded the said amount.

19. The Applicant has annexed along with the

Application, a copy of a letter written by Lt.

Col./Major, Officiating Commanding Officer,

Infantry Training Battalion, M.I.R.C., Ahmednagar,

which clearly mentions that the Applicant was

physically present in the establishment of

M.I.R.C. for training, from 18th January, 2016 to

13th March, 2016 and only on 13th March, 2016, he

proceeded on an emergency leave. During the course

of investigation, the Investigation Officer, by

letter dated 22nd March, 2016 written to the

Commandant, M.I.R.C., Ahmednagar called

information about the presence of the Applicant in

the training Center. In turn, by letter dated 5th

April, 2016, the Lt. Col. Adjt., for Commandant

provided following information:

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a) Date of enrolment – 14 October 2015

b) Date of training commenced – 02 November 2015.

c) Details of leave availed –

till date 01 day casual leave
on 13 March 2016 as
his brother’s wife
expired on 12 March,
2016.

. The contentions of the learned counsel

appearing for Respondent No.2 that, even on the

holidays the Applicant used to visit his house,

has no any basis or there is no specific incident

as stated in the FIR or supplementary statements

to that effect that on particular date or on

holiday the Applicant visited his house and gave

ill-treatment or harassment to Rupali. We are not

entering into the exercise of appreciation of the

evidence collected during the course of

investigation, but on the basis of allegations in

the FIR and the material collected during the

course of investigation by the Investigating

Officer, we are of the prima facie opinion that,

there are omnibus and general allegations against

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the Applicant in the FIR. Upon careful perusal of

the contents of the FIR, it appears that there are

serious allegations against the co-accused

Bhausaheb and also about demand against the father

of the Applicant. We find considerable force in

the argument of the learned counsel appearing for

the Applicant that, it is difficult to comprehend

the allegation in the FIR that an amount of Rupees

One Lakh was demanded to secure job to the

Applicant in military services appears to be

absurd. Indisputably, and as stated in the FIR by

the informant, Rupali was treated nicely for 3-4

months after her marriage. Marriage was solemnized

in the month of February, 2015 and 4 months time

would get completed in June, 2015. Thereafter the

Applicant stayed in the house till he joined the

training in the M.I.R.C. in the month of October,

2015. It further appears that in the month of

August, 2015 itself result of the examination for

the said post was declared and in the first week

of September, 2015 the Applicant received

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communication from the authorities that his name

appeared in the select list. Even if it is assumed

for a moment that there was demand by the father

of the Applicant, in absence of any demand, much

less specific demand by the Applicant, an

ingredients of Section 498-A of the I.P. Code so

as to constitute alleged offence punishable under

said Section as against the Applicant are not

attracted.

20. The Supreme Court in the case of G. Sagar

Suri and another vs. State of U.P. and others 8

while explaining the scope of jurisdiction under

Section 482 of the Criminal Procedure Code, in

Para 8 and 9 held thus:

“8. Jurisdiction under Section 482 of the
Code has to be exercised with great care.

In exercise of its jurisdiction the High
Court is not to examine the matter
superficially. It is to be seen if a
matter, which is essentially of a civil
8 (2000)2 S.C.C. 636

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nature, has been given a cloak of criminal
offence. Criminal proceedings are not a
short cut of other remedies available in
law. Before issuing process a criminal
court has to exercise a great deal of
caution. For the accused it is a serious
matter. This Court has laid certain
principles on the basis of which the High
Court is to exercise its jurisdiction under
Section 482 of the Code. Jurisdiction under
this section has to be exercised to prevent
abuse of the process of any court or
otherwise to secure the ends of justice.

9. In State of Karnataka v. L.Muniswamy9
this Court said that in the exercise of the
wholesome power under Section 482 of the
Code the High Court is entitled to quash a
proceeding if it comes to the conclusion
that allowing the proceeding to continue
would be an abuse of the process of the
court or that the ends of justice require
that the proceedings are to be quashed.”

(Underlines added)

21. It is also necessary to mention that when

there was alleged demand of money for securing job

9 [1977] 2 SCC 699

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to the Applicant, nothing is brought on record by

the Respondents that the informant or his family

members protested against such demand by way of

filing any complaint or FIR in the police station.

The alleged incident of commission of suicide by

Rupali had taken place on 11th – 12th March, 2016,

and the FIR came to be registered on 13th March,

2016 itself. By that time the Applicant was

already under training in military services. He

joined the said training center on 15th October,

2015. Therefore, viewed from any angle if the

allegations against the Applicant are taken as it

is in the FIR, alleged offence punishable under

Section 498-A of the I.P. Code is not disclosed.

22. It is also alleged in the FIR and also in

the supplementary statements that Rupali committed

suicide due to ill-treatment and harassment and

also illegal demand by the accused persons. In the

facts of the present case, as already discussed,

the Applicant joined the training in M.I.R.C. in

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the month of October, 2015 and he was continuously

attending the said training except on 13th March,

2016 when he was proceeded on emergency leave so

as to attend the funeral of Rupali and therefore

the Applicant had no occasion to visit the home.

As already observed, there is nothing on record

which would suggest that the Applicant was

involved in telephonic conversation with Rupali

and by way of said conversation there was an

attempt to mentally harass and ill-treat Rupali.

It is also stated by the Applicant that during the

said training he was not allowed to use the mobile

or had an access to the telephone. In this

background, it will have to be seen whether the

ingredients of Section 107 of the I.P. Code are

attracted in the facts of the present case

confined to the Applicant and then only it is

possible to hold that alleged offence under

Section 306 of the I.P. Code is disclosed against

the Applicant. Upon careful perusal of the

allegations in the FIR or in the supplementary

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statements or the statements of other witnesses

recorded during the course of investigation, none

of the witnesses including the informant has

stated about visit of the Applicant to his house

within proximity of alleged suicide by Rupali. In

order to constitute offence under Section 306 of

the I.P. Code, the prosecution must show that

there was instigation or abetment or intentional

aid or conspiracy which is intended the commission

of suicide by the person who has committed the

suicide.

23. The Supreme Court in the case of S.S.

Chheena V/s Vijay Kumar Mahajan and another 10, in

para 25 observed that, the abetment involves

mental process of instigating a person or

intentionally aiding a person in doing of a thing.

Without a positive act on the part of the accused

to instigate or aid in committing suicide,

conviction cannot be sustained. The intention of

10 (2010) 12 SCC 190

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the legislature and the ratio of the cases decided

by this Court is clear that in order to convict a

person under Section 306 of the I.P. Code there

has to be a clear mens rea to commit the offence.

It also requires an active act or direct act which

led the deceased to commit suicide seeing no

option and that act must have been intended to

push the deceased into such a position that he

committed suicide.

24. At this juncture, it would be useful to

make a reference to the Judgment of the Supreme

Court in the case of Madan Mohan Singh V. State of

Gujarat and another.11 In said case, the deceased

therein was working as driver under the Ex.Officer

i.e. appellant therein. The said driver allegedly

committed suicide due to harassment and insulting

behaviour by the appellant therein. He left the

suicide note alleging therein that, the appellant

therein asked the driver to keep the keys of the

11 2010 AIR SCW 5101

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vehicle on the table and not to take away them. It

was further stated that, “I am going to commit

suicide due to his functioning style. Alone M.M.

Singh, D.E.T. Microwave Project is responsible for

my death. I pray humbly to the officers of the

department that you should not cooperate as human

being to defend M.M. Singh has acted in breach of

discipline disregarding the norms of discipline. I

humbly request the Enquiry Officer that my wife

and son may not be harassed. My life has been

ruined by M.M. Singh.”

. The Supreme Court in the facts of

aforesaid case, while explaining the scope of

Sections 306 and 294 vis-a-vis, the facts of that

case in para 9 held thus:-

“It is absurd to even think that a superior
officer like the appellant would intend to
bring about suicide of his driver and,
therefore, abet the offence. In fact, there
is no nexus between the so-called suicide
(if at all it is one for which also there

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38

is no material on record) and any of the
alleged acts on the part of the appellant.
There is no proximity either. In the
prosecution under Section 306, IPC, much
more material is required. The Courts have
to be extremely careful as the main person
is not available for cross-examination by
the appellant/accused. Unless, therefore,
there is specific allegation and material
of definite nature (not imaginary or
inferential one), it would be hazardous to
ask the appellant/accused to face the
trial. A criminal trial is not exactly a
pleasant experience. The person like the
appellant in present case who is serving in
a responsible post would certainly suffer
great prejudice, were he to face
prosecution on absurd allegations of
irrelevant nature.”

. In the facts of the present case also,

there is no nexus between so called suicide and

any of the alleged acts on the part of the

Applicant. There is no proximity either. Even if

the allegations in the FIR and also in the

supplementary statements are read in its entirety,

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the same would not even remotely suggest that, the

Applicant abetted, intentionally aided or

instigated in an alleged suicide by Rupali.

25. In the case of Tushar s/o Mahadeorao

Arsul vs. State of Maharashtra and another

(Criminal Application No.3683 of 2012) decided on

26th November, 2012, the Division of the Bombay

High Court, Bench at Aurangabad, in para 6 of the

Judgment observed that:

“We are of the considered view that the act
or acts of accused to insult do not by
themselves constitute abetment. It has to
be shown from a statement in the complaint
that these accused have actually instigated
and aided in the victim’s act of committing
suicide. In absence of any such
description, the FIR is liable to be viewed
as a text which does not contain the
ingredients of offence.”

26. In the case of Dilip s/o Ramrao Shirasao

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and others vs. State of Maharashtra and another

(Criminal Application No.332 of 2016) decided on

5th August, 2016, the Division Bench of the Bombay

High Court, Bench at Nagpur considered the various

Judgments of the Supreme Court and the High Court

and in Para 20 of the Judgment, held thus:

“20. As has been held by Their Lordships

of the Apex Court that for permitting a

trial to proceed against the accused for

the offence punishable under Section 306 of

the Indian Penal Code, it is necessary for

the prosecution to at least prima facie

establish that the accused had an intention

to aid or instigate or abet the deceased to

commit suicide. In the absence of

availability of such material, the accused

cannot be compelled to face trial for the

offence punishable under Section 306 of the

Indian Penal Code. As has been held by

Their Lordships of the Apex Court that

abetment involves mental process of

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instigating a person or intentionally

aiding a person in doing of a thing and

without a positive act on the part of the

accused in aiding or instigating or

abetting the deceased to commit suicide,

the said persons cannot be compelled to

face the trial. Unless there is clear mens

rea to commit an offence or active act or

direct act, which led the deceased to

commit suicide seeing no option or the act

intending to push the deceased into such a

position, the trial against the accused

under Section 306 of the Indian Penal Code,

in our considered view, would be an abuse

or process of law.”

27. The Supreme Court, in recent Judgment in

the case of Heera Lal and another vs. State of

Rajasthan (Criminal Appeal No.790 of 2017) decided

on 24th April, 2017, in Para 6 to 10 held thus:

“6. Having heard the learned

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counsel appearing for the parties and

having gone through the evidence, we

are of the opinion that Section 113A of

the Indian Evidence Act requires three

ingredients to be satisfied before it

can be applied i.e. (i) that a woman

has committed suicide, (ii) such

suicide has been committed within a

period of seven years from the date of

her marriage and (iii) the husband or

his relatives who are charged had

subjected her to cruelty.

7. This Court in an illuminating

Judgment in Ramesh Kumar vs. State of

Chhattisgarh (2001) 9 SCC 618 has

stated the law as follows:-

“This provision was introduced by the
Criminal Law (Second) Amendment Act, 1983
with effect from 26-12-1983 to meet a
social demand to resolve difficulty of

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proof where helpless married women were
eliminated by being forced to commit
suicide by the husband or in-laws and
incriminating evidence was usually
available within the four corners of the
matrimonial home and hence was not
available to anyone outside the occupants
of the house. However, still it cannot be
lost sight of that the presumption is
intended to operate against the accused in
the field of criminal law. Before the
presumption may be raised, the foundation
thereof must exist. A bare reading of
Section 113-A shows that to attract
applicability of Section 113-A, it must be
shown that (i) the woman has committed
suicide, (ii) such suicide has been
committed within a period of seven years
from the date of her marriage, (iii) the
husband or his relatives, who are charged
had subjected her to cruelty. On existence
and availability of the abovesaid
circumstances, the Court may presume that
such suicide had been abetted by her
husband or by such relatives of her
husband. Parliament has chosen to sound a
note of caution. Firstly, the presumption
is not mandatory; it is only permissive as
the employment of expression “may presume”
suggests. Secondly, the existence and

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availability of the abovesaid three
circumstances shall not, like a formula,
enable the presumption being drawn; before
the presumption may be drawn the court
shall have to have regard to “all the other
circumstances of the case”. A consideration
of all the other circumstances of the case
may strengthen the presumption or may
dictate the conscience of the court to
abstain from drawing the presumption. The
expression – “the other circumstances of
the case” used in Section 113-A suggests
the need to reach a cause – and – effect.
Relationship between the cruelty and the
suicide for the purpose of raising a
presumption. Last but not the least, the
presumption is not an irrebuttable one. In
spite of a presumption having been raised
the evidence adduced in defence or the
facts and circumstances otherwise available
on record may destroy the presumption. The
phrase “may presume” used in Section 113-A
is defined in Section 4 of the Evidence
Act, which says – “Whenever it is provided
by this Act the court may presume a fact,
it may either regard such fact as proved,
unless and until it is disproved, or may
call for proof of it.”

8. We find that having absolved the

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appellants of the charge of cruelty, which
is the most basic ingredient for the
offence made out under Section 498A, the
third ingredient for application of Section
113A is missing, namely, that the relatives
i.e., the mother-in-law and father-in-law
who are charged under Section 306 had
subjected the victim to cruelty. No doubt,
in the facts of this case, it has been
concurrently found that the in-laws did
harass her, but harassment is something of
a lesser degree than cruelty. Also, we find
on the facts, taken as a whole, that
assuming the presumption under Section 113A
would apply, it has been fully rebutted,
for the reason that there is no link or
intention on the part of the in-laws to
assist the victim to commit suicide.

9. In the absence of this vital link, the
mere fact that there is a finding of
harassment would not lead to the conclusion
that there is “abetment of suicide”.

10. On the facts, therefore, we find,
especially in view of the fact that the
appellants have been acquitted for the
crime under Section 498 A of the Code, that
abetment of suicide under Section 306 is
not made out.”

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28. Therefore, keeping in view the exposition

of law in the afore mentioned Judgments, in the

present case in absence of any material suggesting

any instigation, abetment or intentional aid on

the part of the Applicant in commission of suicide

by Rupali, it will have to be held that so far as

the Applicant is concerned, the alleged offence

under Section 306 of the I.P. Code is not

disclosed.

29. It is submitted by the learned counsel

appearing for Respondent No.2 during the course of

hearing that, Section 304-B of I.P. Code is added

during the course of investigation and even the

charge-sheet is filed against the other co-

accused. The Hon’ble Supreme Court had occasion to

consider the scope of Section 304-B of the I.P.

Code in the case of Satvir Singh and others vs.

State of Punjab and another (supra). In Para 14

of the Judgment, it is held that :-

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“14. The essential components of Section
304-B are: (i) Death of a woman occurring
otherwise than under normal circumstances,
within 7 years of marriage. (ii) Soon
before her death she should have been
subjected to cruelty and harassment in
connection with any demand for dowry. When
the above ingredients are fulfilled, the
husband or his relative, who subjected her
to such cruelty or harassment, can be
presumed to be guilty of offence under
Section 304-B. To be within the province of
the first ingredient the provision
stipulates that “where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstance”. It may appear that the
former limb which is described by the words
“death caused by burns or bodily injury” is
a redundance because such death would also
fall within the wider province of “death
caused otherwise than under normal
circumstances”. The former limb was
inserted for highlighting that by no means
death caused by burns or bodily injury
should be treated as falling outside the
ambit of the offence.”

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30. The Supreme Court in the case of Rajinder

Singh vs. State of Punjab 12, in Para 23 observed as

under:

“We endorse what has been said by these two
decisions. Days or months are not what is
to be seen. What must be borne in mind is
that the word “soon” does not mean
“immediate”. A fair and pragmatic
construction keeping in mind the great
social evil that has led to the enactment
of Section 304B would make it clear that
the expression is a relative expression.
Time lags may differ from case to case. All
that is necessary is that the demand for
dowry should not be stale but should be the
continuing cause for the death of the
married woman under Section 304B.”

31. It is true that in the facts of the

present case, death of Rupali occurred within

seven years from the date of marriage and death

occurred otherwise than under normal

circumstances. However, on perusal of the

12 AIR 2015 S.C. 1359

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allegations in the FIR or other evidence collected

by the Investigating Officer, there is nothing to

suggest that soon before the death of Rupali she

was subjected to cruelty and harassment in

connection with demand for dowry by the Applicant.

Since we are considering the case of the Applicant

for quashing the FIR, we make it clear that we are

not, even by slightest way, discussing or

suggesting anything about other co-accused. Since

the investigation is proceeded against the co-

accused and charge-sheet is filed, the Court can

proceed with trial against those accused. But so

far as the Applicant is concerned, at the cost of

repetition, we reiterate that since he joined the

training in the military services, he had no

occasion to visit the house except on 13th March,

2016, when he opted for extra ordinary leave to

attend the funeral of Rupali. The feeble attempt

of the counsel appearing for Respondent No.2 to

suggest that Applicant used to come to his house

on holidays, has no any basis, in as much as,

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50

there is nothing collected during the course of

investigation or suggested or alleged in the FIR

that on holidays he visited the house.

32. The Supreme Court in the case of Anita

Malhotra vs. Apparel Export Promotion Council and

another13 observed in Para 20 as under:-

“Though it is not proper for the High Court
to consider the defence of the accused or
conduct a roving enquiry in respect of
merits of the accusation, but if on the
face of the documents which is beyond
suspicion or doubt, placed on record by the
accused and if it is considered that the
accusation against her cannot stand, in
such a matter, in order to prevent
injustice or abuse of process, it is
incumbent on the High Court to look into
those document/documents which have a
bearing on the matter even at the initial
stage and grant relief to the person
concerned exercising jurisdiction under
Section 482 CrPC”.

13 (2012)1 S.C.C. 520

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. Keeping in view the aforesaid

observations, we have considered the contents of

the letter written by the superior authority from

military services stating therein about the

physical presence of the Applicant for continuous

period in the training center after he joined the

training in M.I.R.C. till 12th March, 2016. It is

only on 13th March, 2016, he proceeded on extra

ordinary leave so as to attend the funeral of

Rupali.

33. The argument canvassed on behalf of

Respondent No.2 that since Section 34 of the I.P.

Code is invoked and therefore Applicant also needs

to be tried along with co-accused, deserves no

consideration. When we have reached to the

conclusion that prima facie alleged offences are

not disclosed against the Applicant under Sections

498-A, 306 and 304-B of the I.P. Code, the

Applicant cannot be dragged to face the ordeal of

trial along with other co-accused, when he is

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serving in military.

34. In the light of discussion in the

foregoing paragraphs, inevitable conclusion is

that the Application of the Applicant deserves to

be allowed.

35. Hence the Application is allowed. The

First Information Report bearing Crime No.0070 of

2016 registered with Nagar Taluka Police Station,

Ahmednagar dated 13th March, 2016 for the offence

punishable under Section 306, 498-A read with 34

of the Indian Penal Code is quashed and set aside,

confined to the Applicant.

36. Rule made absolute in above terms.

Criminal Application stands disposed of,

accordingly.

37. We make it clear that other co-accused

will not be entitled to derive any benefit from

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the observations made herein before. We also make

it clear that the observations made herein above

are prima facie in nature, confined to the

adjudication of the present Application and the

trial Court shall not get influenced by the said

observations during the course of the trial as

against the co-accused.

[K.K. SONAWANE, J.] [S.S. SHINDE, J.]
asb/APR17

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