Bombay High Court
Mufiz Miya Bapu Miya Deshmukh (Abated) vs The State Of Maharashtra, Through The ... on 26 September, 2017
Author: Manish Pitale
Bench: R.K. Deshpande, Manish Pitale
1 Appeal77-14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.77 OF 2014
...
Mufiz Miya Bapu Miya Deshmukh
(Since expired through his wife)
Anjum wd/o Mufizmiya Babumiya
Deshmukh, Aged about 53,
Occupation: Nil,
R/o Danish Colony Camp,
Tah. & Dists. Amravati. .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through the PSO of PS
Nandgaonpeth,
Taluka & Dist. Amravati. .. RESPONDENT
Mr. Parvez W. Mirza, Advocate for Appellant.
Mr. S.M.Ukey, Additional Public Prosecutor for Respondent.
....
CORAM : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON : September 13, 2017
PRONOUNCED ON : September 26, 2017.
JUDGMENT (per Manish Pitale, J. )
By this appeal, the appellant has challenged the judgment and order dated 23.01.2014 passed by the Court of ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 2 Appeal77-14.odt Session, Amravati, in Sessions Case No. 63 of 2006, wherein the appellant-accused No.8 has been convicted under Section 218 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment of one year and to pay fine of Rs.1,000/-.
2. During the pendency of this appeal, the appellant died and the appeal was dismissed as abated. As a result, the authorities refused to grant pension to the widow of the appellant. In this situation, the widow of the appellant moved an application seeking leave to continue the appeal. This application was allowed on 06.07.2015 by an order passed by the learned Single Judge of this Court. Accordingly, amendment was carried out and the present appeal is being shown as pursued by the widow of the deceased appellant. The appeal is being considered on merits.
3. The appellant was working as Police Inspector in the Police Station, Nandgaon Peth, Amravati. The allegation against the appellant was that he along with accused no.9 - K.Y. Apar, Police Sub Inspector working in the same Police Station, deliberately acted in a manner while registering first information report (FIR) in the present case, so as to help the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 3 Appeal77-14.odt main accused against whom the complainant had made allegations regarding the death of his daughter in suspicious circumstances.
4. On 12.10.2005, PW1 Manikrao had approached the Police Station Nandgaon Peth with a written complaint (Exh.182), stating that his daughter Vaishali had died in suspicious circumstances in her house in the early morning of 12.10.2005, in respect of which he suspected the involvement of his son-in-law and the entire family. In this written report, it was also alleged that the son-in-law of the complainant was having an illicit relationship with one Vandana (accused No.7), due to which his daughter had been done to death by her husband.
5. The complainant (PW1) claimed that when this written report was taken to the Nandgaon Peth Police Station , accused No.9, the colleague of the appellant (accused No.8), delayed in receiving the written complaint and eventually at 1.30 a.m. on 13.10.2005, the said written complaint was received. Thereafter it was alleged that the accused No.9 asked PW1 to meet the appellant on 13.10.2005 and the appellant asked PW1 to write the report as per the say of ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 4 Appeal77-14.odt accused No.9 and on this basis a formal FIR was finally registered at 10.30 p.m. on 13.10.2005.
6. It was further alleged that despite the detailed facts narrated by PW1 in his written complaint, particularly the fact that the marriage between his deceased daughter and her husband (accused No.1) had taken place about 16 years ago, offence under Section 304-B instead of Section 302 of the IPC was wrongly registered by the appellant and accused No.9. It was alleged that when the marriage had clearly taken place more than 7 years before the death of the daughter of the complainant, there was no basis for registration of offence under Section 304-B of the IPC instead of Section 302 of the IPC and that this was done by the appellant and accused No.9 only to help the accused.
7. Upon a complaint made to the Government by PW1, the investigation was transferred to the Criminal Investigation Department (CID) on 21.02.2006 and the Court granted permission for further investigation. But, before such transfer of investigation to the CID, it has come on record that superior officer i.e. Assistant Commissioner of Police wrote a letter dated 08.12.2005 (Exh.282) to the appellant that if a charge ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 5 Appeal77-14.odt sheet was filed for offence under Section 304-B of the IPC against the accused, there was possibility of acquittal and it was advised that suitable action be taken in that regard.
8. Despite such specific advice given by the Superior Officer, the appellant did not make any amends and submitted a charge sheet on 28.12.2005 against the accused for offence under Section 304-B instead of Section 302 of the IPC. It is in these circumstances that PW1 submitted a complaint before the Government, which led to the investigation being transferred to the CID.
9. After the CID took over the investigation and further investigation was conducted in the matter that offence under Section 304-B of the IPC was deleted and the accused were charged under Section 302 of the IPC for the murder of the daughter of PW1. Subsequently, the appellant and his colleague PSI K.Y. Apar were arrayed as accused Nos. 8 and 9 and they were charged with offences under Section 217 (public servant disobeying direction of law with intent to save person from punishment or property from forfeiture) and Section 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture ) of ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 6 Appeal77-14.odt the IPC. By an order dated 31.01.2008 (Exh.300), the Competent Authority granted sanction for prosecution of the appellant (accused No.8).
10. The Sessions Court in the impugned judgment has found that the actions of the appellant along with accused No.9 were such that it could be concluded that they intentionally acted in a manner to save the accused persons from punishment. The Sessions Court found that the appellant had committed offence under Section 218 of the IPC because he intentionally wrongly registered offence under Section 304-B instead of Section 302 of the IPC to help the accused. The Sessions Court also found that there were allegations against the appellant that he had antedated case diary entry and that statement of PW9 was deliberately not placed on record.
11. The Sessions Court has considered the evidence and material on record and it has found that the appellant (accused No.8) had deliberately wrongly registered offence under Section 304-B instead of Section 302 of the IPC in the present case with the intention to help the accused, that he filed the charge sheet also under Section 304-B of the IPC despite letter from his superior officer, that false record of diary entry was ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 7 Appeal77-14.odt created by him and that no explanation was given as to why statement of PW9 which was recorded on 24.12.2005 by the appellant, was not filed along with the charge sheet, though the name of said person was cited as a witness.
12. Mr. Parvez Mirza, learned counsel appearing for the appellant submitted that the material on record was not enough for the Sessions Court to have recorded a finding that the appellant had intentionally acted in a manner to help the accused and that therefore, offence under Section 218 of the IPC was not made out. It was contended that the appellant registered offence under Section 304-B of the IPC and even filed charge sheet for the offence under the said provision, only because he was waiting for conclusive evidence regarding homicidal nature of death of the daughter of PW1. We fail to understand as to how this could be a justification for registration of offence under Section 304-B of the IPC, when it was evident from the complaint submitted by PW1 that the marriage of his daughter had taken place about 16 years ago. The offence under Section 304-B of the IPC could be registered only if the death of the victim had taken place within 7 years of marriage. The said contention that the nature of death being homicidal would have determined as to whether the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 8 Appeal77-14.odt offence could be registered under Section 304-B or Section 302 of the IPC, cannot be accepted in the facts of the present case, when admittedly the death had not taken place within 7 years of marriage.
13. The counsel for the appellant failed to demonstrate as to how the findings of the Sessions Court in the present case with regard to false record pertaining to diary entry created by the appellant, could be found fault with and similarly there is no explanation on record as to why statement of PW9 undisputedly recorded by the appellant on 24.12.2005, was not filed along with the charge sheet. Such actions of the appellant demonstrate that he acted in a manner that was intended to help the accused. The duty as a Police Officer to investigate the serious crime in the present case was not undertaken in the expected manner by the appellant.
14. The contention of the appellant that this could be seen as incompetence on the part of the appellant with no intention to help the accused, cannot be accepted in view of the glaring facts that have come on record as regards the conduct of the appellant from the very beginning in the instant case. There was concerted attempt on the part of the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 9 Appeal77-14.odt appellant to take the investigation in a direction that would ensure that the accused are not found guilty in the matter. The material on record clearly indicates that the appellant deliberately acted with the intent to save the accused in the present case, thereby committing offence under Section 218 of the IPC.
15. Although, in our judgment in Criminal Appeal No. 59 of 2014, filed by accused No.1- husband of the victim, we have found that sufficient medical evidence is not on record to hold that the daughter of PW1 died of homicidal death and we have allowed the appeal of accused No.1, we are of the opinion that our judgment allowing Criminal Appeal No. 59 of 2014 does not have any bearing on the consideration of the instant appeal filed by the appellant. The present appeal is being decided on the basis of evidence and material on record against the appellant in respect of offence under Section 218 of the IPC. We are of the opinion that our findings in the instant appeal are independent of our decision rendered in Criminal Appeal No.59 of 2014.
16. On the basis of the evidence and material on record clearly pointing towards the actions undertaken by the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:45:48 ::: 10 Appeal77-14.odt appellant intentionally to save the accused from punishment in the present case, we find that there is no error committed by the Sessions Court in the impugned judgment and order by convicting and sentencing the appellant under Section 218 of the IPC.
17. Accordingly the appeal is dismissed.
(Manish Pitale, J. ) (R.K. Deshpande, J.)
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halwai/p.s.
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