Bombay High Court
Rameshwar S/O. Namdeo Wakte vs The State Of Maharashtra Thr. Police ... on 11 December, 2020
Author: V.M. Deshpande
Bench: V. M. Deshpande, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 743 OF 2018
1. Rameshwar S/o Namdeo Wakte,
Aged about 57 years, Occ. Service/Head Master,
R/o at village Kolambi, Tah. And Dist. Akola .... APPLICANT
// VERSUS //
1. State of Maharashtra, through
Police Station Officer,
Borgaon Police Station,
Akola.
2. Satyawan S/o Samadhan Wahurwagh,
Aged about 40 years, Occ. : Labour,
R/o at Village Dalambi,
Tah. And Dist. Akola.
3. Subhash S/o Sampat Chakranarayan,
Aged about 46 years, Occ. : Labour,
R/o at Village Dalambi, Tah. And
Dist. Akola ....NON-APPLICANTS
Shri N.B. Kalwaghe, Advocate for the applicants.
Shri S.M.Ghodeswar, Additional Public Prosecutor for the non-applicant no.1.
________________________________________________________________
CORAM : V. M. DESHPANDE AND
ANIL S. KILOR, JJ.
DATE : 11th DECEMBER, 2020.
ORAL JUDGMENT: [PER: V.M. Deshpande, J.]
In spite of issuance of the notice dated 6 th December, 2018 for final disposal and though the non-applicant nos. 2 and 3 are duly served in the year 2018 as it could be seen from the office ::: Uploaded on - 16/12/2020 ::: Downloaded on - 10/02/2021 00:08:13 ::: apl-743-18(j).odt 2/9 notes dated 19th December, 2018, nobody is appearing on behalf of the non-applicant nos. 2 and 3
2. Since the notice was for final disposal and the reply is filed by the non-applicant no.1/State and all case papers are available with the learned Additional Public Prosecutor, we propose to dispose of this application at this stage.
3. RULE. Rule is made returnable forthwith. The matter is taken up for final hearing.
4. This application under Section 482 of the Code of Criminal Procedure is filed by the applicant for quashing of the First Information Report on the complaint lodged by the non-applicant nos.2 and 3 dated 29th June, 2011 a crime was registered with Borgaon Police Station of Akola bearing Crime No. 201/2018 for the offence punishable under Section 304-A of the Indian Penal Code against the applicant and others including one Mohit Deshmukh, a contractor working on National Highway No.6 in respect of construction of the State Highway.
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5. There is no dispute before this Court that the applicant is the Head Master of a School known as Shri Shankar Vidyalaya, Kolambi within Gram Panchayat area, Borgaon, Dist. Akola. It is also not in dispute that Gaurav Satyawan Wahurwagh and Sangarsh Subhash Chakranarayan, who are the sons of the non-applicant nos. 2 and 3 were taking education in 7th standard in the said school.
6. The report was lodged in respect of the incident dated 28th June, 2018. On the said day Kumar Gaurav and Kumar Sangarsh lost their life because of drowning in a large pit situated on a piece of land which is e-class land bearing Gat no. 372.
7. As per the First Information Report, Gaurav and Sangarsh went to school on 28th June, 2018 and when they were in the class room, they requested for leave for answering nature's call. It is stated in the First Information Report that inspite of availability of toilet in the school, the teacher directed them to go outside for answering nature's call. It is also stated in the First Information Report that gat no. 372 which is an E-class land, co-accused Mohit Deshmukh, a contractor without any permission, excavated the land with the help of machine, resulting into creation of a very big pit i.e 50 feet in length, 20 feet in breadth and 20 feet in depth and rain ::: Uploaded on - 16/12/2020 ::: Downloaded on - 10/02/2021 00:08:13 ::: apl-743-18(j).odt 4/9 water was accumulated in the said pit. It is also alleged in the First Information Report that Gaurav and Sangarsh both drowned in the said pit.
8. The applicant who is the Head Master, approached to this Court by filing the present application under Section 482 of the Code of Criminal Procedure on 10th August, 2018 for quashing of the First Information Report against him. On 6 th December, 2018 while issuing notice for final disposal, it was directed that though the investigation may go on, the chargesheet shall not file until further orders against the applicant.
9. It is the submission of the learned counsel for the applicant that the applicant cannot be held guilty even on the plain reading of the First Information Report for the offence punishable under Section 304-A of Indian Penal Code. He submitted that on the day of the incident dated 28 th June, 2018, the applicant was at Akola in respect of his school work. He, therefore, submitted that the application be allowed.
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10. Learned Additional Public Prosecutor for the State, in view of the reply filed on behalf of the Investigating Officer, prayed for the dismissal of the application.
11. Section 304 of the Indian Penal Code reads as under:
304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
12. The question that this Court is expected to answer is whether the applicant is negligent when he was discharging his duty as Head Master or it could be said that the act of the applicant was such which could be rash and negligent, resulting into the death of two unfortunate kids.
13. The First Information Report and all the entire investigation papers which are placed for our perusal, do not attribute any role to the applicant or it could be said that on the day of the incident, the applicant was rash and negligent, resulting into the death of two students of the school.
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apl-743-18(j).odt 6/9 14 There are no allegations against the applicant in the First Information Report that in any manner whatsoever in nature, he assisted and/or facilitated co-accused Mohit Deshmukh for excavation who was engaged in respect of construction of National Highway no.6. The First Information Report alleges that Gram Panchayat Kolambi has reported illegal excavation to the Tehsildar and other authorities as mentioned in the report, however their complaints were not taken any cognizance resulting into a big pit due to illegal excavation. From the entire prosecution case, as it could be seen from the investigating papers qua the present applicant, even prima facie, it can not be said that the applicant is in any way responsible for excavation and for creation of a big pit.
15. The spot panchanama shows that the school in which the present applicant is the Head Master is not situated near by the spot of the incident. Though, in the First Information Report it is stated that the spot of the incident is 20 meter away, from the perusal of the spot panchanama, it does not show any reference of Shankar Vidyalaya nearby the spot of incident. The boundaries of the spot are mentioned in the spot panchanama and they are as under :
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Southern side - Agricultural field of Punjabrao Pundekar
16. The sketch map is also available with the investigation papers showing the spot of the incident and the boundaries. Even in the sketch map, the school is not visible.
17. In the First Information Report it is alleged that the deceased students prayed to leave the class on the ground that they want to answer the nature's call. In spite of availability of toilet in the school, the teacher asked them to go outside. Obviously, the complainants were not present at that time in the school. Therefore no importance can be given to such statements reflected in the First Information Report. Perusal of the investigation papers show that the Investigating Officer has recorded the statements of five students. Their statements would reveal that after the recess and after two classes when there was a class of drawing, the drawing teacher Shri Raut asked all the students to come in the ground and there on a sand a picture was drawn by him and at that time deceased students sought permission for answering the nature's call. That time, as per the statements of these students, the said ::: Uploaded on - 16/12/2020 ::: Downloaded on - 10/02/2021 00:08:13 ::: apl-743-18(j).odt 8/9 drawing teacher directed them that they should go to the toilet and accordingly both of them went towards toilet. Their statements further show that thereafter another teacher Kukday took the roll and at that time these two boys were not in the school and therefore teacher Kukday made inquiry. Upon that, the students informed to said teacher that they have gone for answering nature's call. Therefore, teacher directed for making search. In spite of the search taken at toilet and the upstair rooms, the deceased were not found. In the meanwhile, the school time was over and they left the school.
18. The reply filed on behalf of the State would substantiate the submission made by Shri Kalwaghe, learned counsel for the applicant that on the day of incident, the applicant was not present in the school. The said statement in the affidavit about the absence of the applicant in the school is made in view of the statements of the witnesses recorded by the investigating officer, namely Shri Pramod Rajendekar, Shri Manoj Tayade and Smt. Nanda Vibhor, who are all teachers of the said school. There is no material at all on record to show that the applicant was in any way concerned with the illegal excavation with the help of co-accused Mohit Deshmukh the contractor, resulting into creation of big pit in ::: Uploaded on - 16/12/2020 ::: Downloaded on - 10/02/2021 00:08:13 ::: apl-743-18(j).odt 9/9 which the rain water was accumulated which became the cause for death by drowning, as it could be seen from the Postmortem report which shows death due to aphylexia due to drowning, and further on the day of the incident, the applicant was not present at all in the school. As such, we are of the view that continuation of any criminal proceeding on the basis of the First Information Report will be nothing but an abuse of process of law. In totality of the circumstance, we pass the following order.
ORDER
i. Criminal Application is allowed.
ii. The First Information Report No. 201 of 2018
registered with Borgaon Police Station, Dist. Akola for the offences punishable under Section 304-A of Indian Penal Code is quashed qua present applicant only.
iii. It is made clear that all observations made in this order are in respect of deciding this application of applicant only. iv. Rule is made absolute in the above said terms.
JUDGE JUDGE
sknair
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