Bombay High Court
Bhimrao Arjun Shekade And Others vs The State Of Maharashtra And Another on 23 November, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 304 OF 2022
1. Bhimrao Arjun Shekade,
Age. 45 years, Occ. Agri.,
R/o. Patsara, Tq. Ashti,
Dist. Beed.
2. Ankush Mahadev Garje,
Age. 34 years, Occ. Agri.,
R/o. Patsara, Tq. Ashti,
Dist. Beed.
3. Balaji Bhimrao Shekaded,
Age. 23 years, Occ. Agri.,
R/o. Patsara, Tq. Ashti,
Dist. Beed.
4. Bhagwat Ginyandev Garje,
Age. 22 years, Occ. Agri.,
R/o. Patsara, Tq. Ashti,
Dist. Beed.
5. Ankush Ginyandev Garje,
Age. 35 years, Occ. Agri.,
Dist. Beed. ....Applicants.
Versus
1. The State of Maharashtra,
Through Police Station Officer,
Police Station Amalner,
Dist. Beed.
2. Sushil Gopinath Garje,
Age. 20 years, Occ. Service,
R/o. Patsara, Tq. Ashti,
Dist. Beed. ....Respondents
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Advocate for Applicants : Mr. Sudarshan J. Salunke;
APP for Respondent No. 1 : Mr. M.M. Nerlikar;
Advocate for Respondent No. 2 : Mr. Kedar Warad
h/f. Mr. S.E. Shekade.
CORAM : SMT. VIBHA KANKANWADI
AND RAJESH S. PATIL, JJ.
DATE : NOVEMBER 23, 2022.
P.C.:-
1. The present application has been filed for quashing
the FIR as well as the entire proceedings against the applicants
under the inherent powers of this court under section 482 of
Cr.P.C. It will not be out of place to mention here that the
applicant No.1, in view of the order dated 18th February 2022,
has withdrawn the application and therefore, the application
proceeded for the reliefs claimed by applicant Nos. 2 to 5.
2. Heard Mr. Salunke, learned advocate for the
applicants, Mr. Warad for respondent No.2 (informant) and the
learned APP.
3. It has been vehemently submitted on behalf of the
applicants that perusal of the FIR and the entire charge sheet
would show that the alleged incident of suicide by the deceased
Gopinath Garje had taken place on 6th October 2021 and he
expired on 10th October 2021. The FIR came to be lodged on
11th October 2021. Therefore, there is delay in lodging the
FIR. He further submits that the FIR depicts that there was
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some dispute pending since 2/3 years prior to the FIR, which
according to the informant and the deceased, was in respect of
digging a well of which part was in the field of the deceased. It
is also stated that there used to be quarrels between the
deceased and the applicant No.1 on the ground of said well and
the rubble which was lying or dumped in the field of deceased
was not removed by the applicant No.1. As regards applicant
Nos. 2 to 5, it is stated that they used to give threat to kill to
the deceased and such incident had happened around 5.00
p.m. to 6.00 p.m. on 4th October 2021. The said quarrel was
separated by the wife of the deceased as well as other
relatives. The informant had gone to the village on 5 th October,
2021 and the deceased had informed about the complaint
lodged by the applicants Balaji Shekade with police and it was
also informed that he had promised that the said complaint
would be taken back and therefore, the deceased had not
lodged any complaint against the applicants.
4. On 6th October, 2021, informant, Balaji and Bhimrao
had been to the police station to see, whether Balaji's
complaint has been registered and to compromise the said
dispute. The deceased was at home. According to informant,
the deceased was under tension. He also states that he
returned around 6.00 p.m. and found that his father has
consumed insecticide called "Rogar". The deceased was
talking in stammering and they could smell insecticide from his
mouth. The arrangements were made only through applicant
No.5 to shift the deceased to hospital. From Government
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Hospital, Ashti, he was taken to City Care Hospital
Ahmednagar. The deceased expired around 11.45 p.m. on 10 th
October, 2021.
5. The learned advocate for the applicants submit that
the FIR does not show about any suicide note, however, the
charge sheet contends that at the time of admission of the
deceased at City Care Hospital, Ahmednagar by one Bapu
Mahajan - son in law of deceased, the hospital authorities had
handed over a chit to said Bapu Mahajan and then he had
produced it before the police authorities on 11.10.2021 for
which the seizure panchanama has been drawn. The learned
advocate for the applicants has raised objection over this piece
of evidence. He also questions on the basis of the fact that
applicant No.5 had already filed a civil suit for partition and
submits that when the applicant no.5 was the person who
helped the informant to shift the deceased to hospital, whether,
there could have been an intention in the mind of applicants
that deceased should commit suicide. He also submits that the
statements of witnesses those have been recorded would show
about the incident dated 4.10.2022, which could have been
taken so seriously to infer that the alleged harassment was of
such an extent that it would drive a person to commit suicide.
He further submits that even if we consider all the documents
in the charge sheet, then also the offence under Section 107 or
306 of IPC are not made out against applicant Nos. 2 to 5.
Hence, the application deserves to be allowed.
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6. Learned APP Mr. Nerlikar and Mr. Kedar Warad h/f.
Mr. Shekate, vehemently submitted that the dispute between
the parties has come on record. The said dispute was going on
since 2 to 3 years prior to the FIR. It has also come on record
that the present applicant Nos. 2 to 5 used to give threat to kill
to the deceased by taking up quarrels on some or the other
pretext. As regard the incident dated 4.10.2021 is concerned,
all the accused persons had come to the house of the
deceased, assaulted him and gave him threat to kill. The
nephew of deceased by name Ashok and brother of deceased
Ajinath as well the wife of deceased were the persons who had
separated that dispute. Their statements are in consonance
with each others contention. The deceased was under tension
because of the said dispute and he had gathered the
information that the applicant Balaji had lodged complaint
against the deceased with the police. It is specifically stated
that thereafter, there was a move from the applicants' side that
they would withdraw the same. This kept the tension of the
deceased lingering and it appears that ultimately he consumed
poison on 6.10.2021. The informant has stated that he had
gone alongwith applicant Balaji (applicant No.3) and Bhimrao
(applicant No.1) to police station for withdrawal of the
complaint lodged by Balaji. They kept him assured till 5.00
p.m. and thereafter applicant No.1 left the police station by
saying that they will not take the complaint back. Thereafter,
even the informant left the police station around 6.00 p.m.
This attitude is required to be considered. Further the suicide
note which was handed over by the Doctor at City Care
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Hospital, Ahmednagar to Bapu Mahajan has been duly seized
and it has been sent for Handwriting Expert's opinion alongwith
his natural handwriting. The said report is still awaited.
7. Learned APP has submitted that he is having report
from the concerned police station dated 20.7.2022 and
thereafter he has no further report, as to whether the said
report has been submitted by the Handwriting Expert or not.
When all these facts would come before the concerned Court, it
would throw light on the fact that the present applicants were
the persons who were behind the suicide committed by
deceased Gopinath. It would be then premature to allow this
application. It was submitted that this is not a fit case where
the inherent powers under Section 482 of Cr.P.C. needs to be
exercised.
8. At the outset, it is to be noted that the documents
were sent for Handwriting Expert's opinion on 6.12.2021. This
court cannot wait for indefinite period to receive the report.
Even this matter is pending since 17.1.2022 and the first order
that was passed in this case, was on 18.2.2022. There ought
to have been swift action by the Investigating Officer to see,
whether the Handwriting Expert's opinion is ready and it should
have been filed. Even if we consider the contents of the said
chit/suicide note as it is, whether it makes out the case against
the present applicants would be considered at a latter point of
time.
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9. The contents of the FIR lodged by respondent No.2
who is son of the deceased would show that his agricultural
land is adjacent to the land of applicant No.1 - Bhimrao Arjun
Shekade. Bhimrao had dug a well about 2 to 3 years ago and
according to the informant, a part of that well is in the land
owned by deceased Gopinath. The rubble of the said well at
the time of digging was dumped in the land belonging to the
deceased and on that count, there used to be quarrel between
the deceased and applicant No.1. The deceased was insisting
that it should be removed. At the cost of repetition, it can be
said that since the applicant No.1 has withdrawn the
application, we do not want to go into the allegations which are
against him. However, FIR after giving names of all the
applicants states that all of them used to give threats to kill the
deceased and they used to quarrel with deceased, about which
information used to be given by the deceased to informant on
phone. Here, it is to be noted that why the applicant Nos. 2 to
5 used to raise dispute with deceased Gopinath and used to
give him threats to kill has not been further explained. No
doubt, applicant No.3 is son of applicant No.1, yet,
independently there appears to be no specific reason that has
been given on behalf of the informant as well it could not be
found in the statement of witnesses under Section 161 of
Cr.P.C. that there was some reason for the applicant Nos. 2 to 5
to raise dispute or give threats to deceased to the extent of
killing him.
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10. Much has been said about the incident dated
4.10.2021 in the FIR as well as statements of the witnesses
including the wife of deceased, brother and nephew of the
deceased. It is to be noted that it was an assault as alleged by
these persons on the deceased. But, admittedly the deceased
had not lodged any report. The statement of wife of deceased
would show that apart from deceased Gopinath, his wife Manda
and other relatives had also received injuries and wooden stick
was used in the said assault. She has stated that they had
gone to police station and then they were referred to the
Government Hospital. She also tries to show that they were
admitted at night time in Ashti Hospital and they went to
village in the morning. However, she has specifically stated
that no complaint was lodged with the police station. It is for
the prosecution to then explain that, even then these people
had gone to police station, why immediately the FIR was not
taken. Injury certificates which have been collected show
simple injuries on those persons. Therefore, it does not appear
to be a case that FIR could have been delayed by the police
station. The injury certificates do not mention history.
Therefore, even if we take the facts as they are, it might be a
simple case under under Section 323 of IPC or at the most 324
of IPC.
11. The facts further disclose that on 6.10.2021, the
informant who had come down to his village on 5.10.2021 had
gone alongwith applicant Balaji and Bhimrao i.e. applicant Nos.
1 and 3 to Amalner Police Station and it appears that it was
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with a view to convey to the police that Balaji had made up his
mind to withdraw the said complaint. Deceased was at home
and it also appears from the statements of witnesses that he
was alone at home. The informant says that till 5.00 p.m.
applicant No.1 told that he would withdraw the complaint but,
thereafter he told that he will not, and left the police station.
The informant then left the police station around 6.00 p.m.
When he came back to home, he found that his father was
lying on the ground in the door and he had consumed
insecticide. The facts thus disclose that till informant reached
home, deceased Gopinath had no knowledge that applicant
No.1 has then refused to withdraw the complaint. The question
therefore arise is, that when he had no knowledge about what
happened at police station, then, whether the incident dated
4.10.2021 can be taken as the reason for Gopinath to commit
suicide. As aforesaid, the incident dated 4.10.2021, at the
most raises offence under Section 324 of IPC and not more
than that.
12. At this stage, we will have to consider also the fact
that though the alleged encroachment while digging out the
well on the field of deceased Gopinath by applicant no.1 had
happened about 2 to 3 years prior to the FIR, but then the
statements of witnesses well as the FIR are silent on the point,
as to why Gopinath had not filed any suit. In the statement of
wife of deceased Gopinath, she has stated that in respect of
the said well, a civil suit was filed in Ashti Court against one
Parigabai Arjun Shekade. But then, she says that due to
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lock-down, the said suit could not proceed.
13. The investigating Officer has not collected the copy
of the complaint of that suit nor a reference to the same has
been made by the informant in the FIR. The statements
further show that there was dispute at least thrice with
Bhimrao earlier, but each time, there was compromise. If each
time, it has resulted in compromise, then whether, there was
mens-rea with the applicants and with that intention they
would have fought with Gopinath on 4.10.2021, is a question
and the answer will have to be in the negative.
14. The suicide note, read as it is, contains the
statement that Bhimrao Shekade has dug a well in the field of
deceased and Ankush Mahadeo Garje, Balaji Bhimrao Shekade,
Bhagvat Ginyandev Garje, Ankush Ginyandev Garje had given
threats to kill and it is the reason for his death.
15. Here, it is to be noted that, it does not specifically
mention the date i.e. 4.10.2021 as the date on which the
threat to kill was given. Further as per the FIR and the
statements of the witnesses under Section 161 of Cr.P.C. such
threats were given earlier also, however, it is stated that they
had ended up in compromise. Definitely, it is not in dispute as
to when the deceased had left the said note but then, even if
we accept that it was written on 6.10.2021, the deceased
expired on 10.10.2021. Under these circumstances, it would
be questionable whether the said chit could be accepted under
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Section 32 of the Indian Evidence Act as a suicide note.
Therefore, the said suicide note also cannot be considered as
the best piece of evidence which would cover the case under
Section 107 and/or under Section 306 of IPC.
16. The Post-Mortem report gives final opinion as to
cause of death as, "clinically the post mortem findings are
consistent with that of death due to poisoning". The deceased
was admitted to City Care Hospital on 6.10.2021 and prior to
that he was taken to Government Hospital, Ashti. The
treatment papers have not been collected by the Investigating
Officer. The FIR says that deceased was stammering at the
time when informant went to home, whether, till he was taken
to Government Hospital, Ashti, he was conscious, what was the
history that was given and then, when he was shifted to City
Care Hospital whether he was unconscious and whether any
attempt was made to get his dying declaration recorded, are all
questions unanswered in the investigation.
17. No doubt, lacunae in the investigation at this stage
cannot give advantage to the applicants and such documents
can also be produced at a later point of time, but those were
possibilities which could have thrown light on the intention of
the applicants and, therefore, reference of the same has been
taken.
18. Consideration of the facts which have been stated in
the FIR as well as by way of charge sheet would show that the
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incident dated 4.10.2021 cannot be taken as such an incident
which would drive a person to commit suicide. Further it was
not even agitated by the deceased or other persons. The
inaction on the part of the deceased as against alleged threats
to kill will have to be considered adverse and it could not then
be taken as an act which will amounts to instigation, as
contemplated under Section 107 of the IPC, which is one of the
basic ingredients for proving the offence under Section 306 of
IPC.
19. As aforesaid, there was no common cause of action
or common intention for the applicant Nos. 2 to 5 to give threat
and allegedly harass or instigate deceased and as such, Section
34 of IPC cannot get attracted.
20. For the aforesaid reasons, we arrive at a conclusion
that the offence under Section 306 r/w. 34 of IPC has not been
made out against applicant Nos. 2 to 5 and, therefore, the FIR
as well as the entire proceeding deserves to be quashed qua
applicant Nos. 2 to 5. Hence, we pass the following order :-
:ORDER:
[I] The application stands allowed qua applicant Nos. 2 to 5.
[ii] So far as applicant Nos. 2 to 5 are concerned, the FIR vide crime No. 213 of 2021 dated 11.10.2021 registered ::: Uploaded on - 26/11/2022 ::: Downloaded on - 27/11/2022 04:34:11 ::: {13} CRAPLN304.22 sr.919.odt with Amalner Police Station, Dist. Beed, for the offence under Section 306, 323,506 r/w. 34 of IPC stands quashed and set aside. Further charge sheet and criminal case bearing RCC No. 25 of 2022 pending on the file of learned JMFC, Ashti, Dist. Beed and Sessions case, if committed, also stands quashed and set aside as against applicant Nos. 2 to 5.
[iii] It is made clear that the observations made hereinabove are prima facie in nature and the learned trial court shall not, in any way, be influenced by it at the time of trial.
[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE. JUDGE.
grt/-
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