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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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26o; 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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28
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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29
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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30
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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31
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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32
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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33
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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34
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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35
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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36
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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37
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
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38is 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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39
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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40
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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41instigating 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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42counsel 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
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43proof 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::: Uploaded on – 03/05/2017 04/05/2017 00:40:25 :::
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44availability 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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45appellants 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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46
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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47“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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48
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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49allegations 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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51
. 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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52
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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53
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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