Prameshwar Shivaji Waware vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9284 Bom

                                                    464.2017 Cri.WP.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.464 OF 2017 


          Parmeshwar Shivaji Waware 
          Age 21 Yrs. Occ. Agri.  
          R/o. Chinchkheda [T.V.], Tq.Jamner, 
          Dist. Jalgaon.                     PETITIONER


                   VERSUS 


          1.       The State of Maharashtra,  
                   Through Superintendent of Police, 
                   Jalgaon, Dist. Jalgaon.  

          2.       The State of Maharashtra 
                   Through A.P.I. Police Station Pahur, 
                   Dist. Jalgaon. 

          3.       Dinesh Kadu Bholane,  
                   Age: 25 years, Occu : Labour,  
                   R/o. Chinchkheda [T.V] 
                   Tq. Jamner, Dist. Jalgaon 

          4.       Dinkar Sitaram Bhil 
                   Age: 35 years, Occu : Labour 
                   R/o. as above.  

          5.       Praveen Govind Thombre,  
                   Age : 39 years, Occu : Farmer 
                   R/o. as above.

                   [Respondent nos.3 to 5 
                   amended as per Court's Order 
                   dtd. 07.08.2017]             RESPONDENTS  




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                                   ...
          Mrs.Vaishali   A.Shinde   [More],   Advocate   for 
          the petitioner 
          Mrs.Dipali   S.Jape,   APP   for   the   Respondent/ 
          State
          Mr.Vijay   Y.   Patil,   Advocate   for   respondent 
          nos.3 to 5.  
                                   ...

                          CORAM:  S.S.SHINDE & 
                                  MANGESH S.PATIL,JJ. 

Reserved on : 27.11.2017 Pronounced on : 05.12.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Petition is filed praying

therein to transfer the investigation in

Crime No.96/2016 registered with Pahur Police

Station, Taluka Jamner for the offence

punishable under Sections 306, 323, 504, 506

r/w. 34 of the Indian Penal Code to the State

CID or any other local Police Station for the

464.2017 Cri.WP.odt

ends of justice, and further prayed to direct

the investigation agency to add Section 302

and 120 of the Indian Penal Code in Crime

No.96/2016.

4. The background facts leading for

filing the present Writ Petition, in brief,

as disclosed in the Memo of the Petition are

as under:

5. The petitioner is informant, who

registered the Crime No.96/2016 with Pahur

Police Station, Pahur, Taluka Jamner,

District Jalgaon, for the offences punishable

under Sections 306, 323, 504, 506 r/w.34 of

the Indian Penal Code. It is alleged that on

16.12.2016 at 9.30 a.m. when the informant

along with his mother and deceased brother

namely Sambhaji @ Dnyaneshwar were present at

their house, accused namely Dinesh Kadu

Bholane, Dinkar Sitaram Bhil and Pravin

Govindrao Thombre came at their home and

464.2017 Cri.WP.odt

assaulted his brother Sambhaji and beat him

by stick, fist and blow. At that time, the

villagers interfered in that ongoing assault

and rescued the deceased. All the accused

left the spot by threatening that they will

not spare him. After one and half hour, all

the accused again came on the motor cycle and

asked for pardon. The accused Pravin

requested Sambhaji not to file complaint and

also promised that they will also not file

complaint and requested him to forget

whatever had happened in the morning. The

accused Pravin requested deceased to come

with him for the work in his field for

spreading insecticide on brinjal. As the

deceased always used to work in the field of

accused Pravin, hence immediately he get

ready to go for work. Accused Pravin along

with two other accused took the deceased on

their motor cycle for working in the field.

The accused persons instead of taking

464.2017 Cri.WP.odt

deceased in their field for the work, they

took deceased in the field of Afsar Gulab

Tadavi, who is the President of Tanta Mukti

Samiti and resident of village Shingola. All

the accused started assaulting deceased with

stone, kick and blows. The deceased cried for

help. At that time Afsar Gulab Tadvi along

with labourer Digamber Namdeo Mule was giving

water to the crops in his field. Afsar Tadvi

heard noise, hence, he went towards the

accused and deceased and asked them why they

are beating deceased. He tried to interfere

and tried to rescue deceased at that time

accused Pravin pushed him and threatened him

not to interfere as it is their personal

matter. The accused Pravin carried the bottle

of insecticide "Monocil" and administered it

forcefully to the deceased. The accused

Pravin threatened Afsar Tadavi not to

disclose the fact to anybody and if he

disclosed the said fact to anybody he will

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not spare him. As Afsar Tadavi was frightened

hence he left the spot and returned to his

village.

6. It is alleged that as the deceased

Sambhaji did not return back to home, they

searched for him in the village. They

enquired about Sambhaji to the villagers, at

that time one Akash Thombre told the maternal

uncle of the petitioner that, the deceased is

lying near the river. Immediately the

informant along with his uncle reached there,

at that time deceased was lying near the

river and bottle of Monocil i.e. insecticides

was lying near the deceased. There were

injuries on the body of deceased. The

informant immediately took the deceased to

the Hospital where he was declared dead.

Thereafter, the petitioner along with his

uncle Subhash Waware approached the Police

Station to lodge the FIR against the accused.

They narrated all the facts about the

464.2017 Cri.WP.odt

incident to the police authorities. However,

the police authorities neither recorded the

statement of the petitioner nor lodged the

FIR. The informant along with his uncle

waited in the Police Station till midnight of

16.12.2016, still no complaint / FIR was

registered by the Police authorities.

Thereafter, on 17.12.2016 early in the

morning the petitioner again knocked the door

of the police for lodging the complaint,

however, the Police Authorities did not pay

any heed.

7. On 17.12.2016 at about 3.00 p.m. the

police authorities enquired with the

informant about the incident. The informant

narrated all the facts to the police and told

that the accused persons administered poison

to the deceased as they had grudge in their

mind against the deceased and because of

which the death has been occurred. The police

authorities orally told the informant that

464.2017 Cri.WP.odt

they had lodged the complaint for the offence

punishable under Sections 302, 120, 323, 504,

506 r/w. 34 of the Indian Penal Code.

However, they lodged the complaint for the

offence under Section 306, 323, 504, 506 r/w.

34 of the Indian Penal Code. The informant

believed that the police has registered Crime

under Section 302 of the IPC because he could

not read and write as he is illiterate

person.

8. The petitioner approached the

Judicial Magistrate First Class by invoking

Section 156 [3] of the Criminal Procedure

Code by filing Criminal Misc. Application

No.13/2017 for further investigation,

however, the said application was rejected.

Being aggrieved by the same, the petitioner

has filed Criminal Revision No.40/2017 before

the learned Sessions Court at Jalgaon,

however, the said Revision was also rejected.

Hence this Petition.

464.2017 Cri.WP.odt

9. Learned counsel appearing for the

petitioner invites our attention to the

contents raised by the petitioner in para

nos.7 to 12 and submits that, the concerned

Officer incharge of the Police Station did

not register the crime as per the complaint

given by the petitioner. It was narrated by

the informant that the accused had taken

deceased with them on motor cycle and

forcefully administered poison. The concerned

Police Station registered the crime for the

offence punishable under Section 306 of the

Indian Penal Code instead of Section 302 of

the IPC. The Police authorities have

overlooked the statement of Akash Thombre and

eye witness namely Shri Afsar Tadavi, who

have categorically stated that the accused

assaulted deceased and Pravin forcefully

administered poison to the deceased and

thrown him near the river. It is submitted

that the investigation carried out by the

464.2017 Cri.WP.odt

Investigating Officer was not fair and the

same was done under the pressure of the

accused. Though, the statement of Akash

Thombre and Afsar Tadavi clearly lead to the

conclusion that the accused forcefully

administered poison. However, the offence

under Section 302 r/w.120B was not

registered.

10. On the other hand, learned APP

appearing for the respondent-State relying

upon the averments in the affidavit-in-reply

submits that, the investigation has already

completed and the Investigating Officer has

filed charge-sheet before the Judicial

Magistrate First Class, Jamner. On

16.12.2016, the deceased Dnyaneshwar @

Sambhaji Waware had purchased the

"Monocil" [insecticides]. The Investigating

Officer has also seized the receipt of

purchase of insecticides from the pocket of

the shirt of the deceased. The Investigating

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Officer has conducted investigation properly

by recording the statements of the eye

witness. He further submits that the

investigation has been carried out as per the

narration of the allegations in the FIR, and

therefore, the Petition may be rejected.

11. Learned counsel appearing for the

added respondent nos.3 to 5 i.e. original

accused submits that, there is no material in

support of the statement of the alleged eye

witness namely Afsar Tadvi and his statement

did not inspire confidence. He invites our

attention to the various steps taken by the

Investigating Officer to carry out the

investigation and fact that the deceased on

16.12.2016 purchased "Monocil"[insecticides].

He submits that, the Petition may be

rejected.

12. We have given careful consideration

to the submissions of the learned counsel

464.2017 Cri.WP.odt

appearing for the petitioner, learned APP

appearing for the respondent-State and the

learned counsel appearing for respondent nos.

3 to 5. We have carefully perused the

statement of Afsar Tadvi. Upon careful

perusal of the contents of his statement, it

appears that, the deceased was assaulted on

16.12.2016 at about 11.30 a.m. by the accused

and thereafter one of the accused namely

Pravin has assaulted by stick on the chest of

deceased and also carried one green colour

plastic bag containing one tin box.

Thereafter, they dragged him towards bank of

river. As contended by the Afsar Tadvi, he

gave two slaps to Pravin Thombre, however,

said Pravin Thombre and co-accused continued

to drag the deceased towards the bank of

river.

13. Upon careful perusal of the witness

and in particular witness, namely, Afsar

Tadvi, it clearly emerges that the accused

464.2017 Cri.WP.odt

after assaulting Sambhaji [deceased] dragged

him towards bank of river and Afsar Tadvi had

opportunity to watch them till they

disappeared. Therefore, we find considerable

force in the submission of the learned

counsel appearing for the petitioner that,

the FIR has not recorded as per the version

of the informant. Secondly, the Investigating

Officer has not carried out the investigation

in a proper manner. It appears that, on such

faulty and half-hearted investigation, the

charge-sheet has been filed by the

Investigating Officer. In our prima facie

opinion, there was no proper investigation by

the concerned Investigating Officer. The

statement of Afsar Tadvi merely would prima

facie lead to the conclusion that Sambhaji

has not died due to commission of suicide.

Importantly, the injuries are noticed on the

body of the deceased Sambhaji. In case of

simple suicide, there was no question of

464.2017 Cri.WP.odt

injuries on the body of the deceased. It is

true that, the petitioner invoked the

jurisdiction of the Court of Judicial

Magistrate First Class and also the

Revisional Court, however, the said Courts

have no jurisdiction to transfer the

investigation to the Special Agency, and

therefore, in the peculiar facts and

circumstances of this case, the case is made

out to transfer the investigation to some

other Officer. It is true that, the charge-

sheet has been filed, however, in view of the

exposition of law by the Supreme Court in the

case of Narmada Bai Vs. State of Gujarat and

others1 merely because the charge-sheet is

filed, it cannot be construed as an

impediment for further investigation.

14. In that view of the matter, we

direct the Superintendent of Police, Jalgaon,

to appoint an Officer not below the rank of

1 AIR 2011 SC 1804

464.2017 Cri.WP.odt

Deputy Superintendent of Police to cause

further investigation. Needless to observe

that, the earlier Investigating Officer be

relieved from the investigation in Crime

No.96/2016 registered with Pahur Police

Station, Taluka Jamner, District Jalgaon. We

direct the Superintendent of Police, Jalgaon

to take immediate steps to appoint new

Investigating Officer not below the rank of

Deputy Superintendent of Police, as

expeditiously as possible, however, within

one week from today.

15. Upon such appointment of new

Investigating Officer, the said Officer shall

expedite the investigation, if necessary, to

record further statement of the witnesses,

and also would be at liberty to add sections

of the Indian Penal Code during the course of

investigation. Till then, further proceedings

in R.C.C.No.43/2017, pending on the file of

464.2017 Cri.WP.odt

Judicial Magistrate First Class, Jamner,

shall remain stayed.

16. Needless to observe that, the

Investigating Officer will be at liberty to

file additional charge-sheet depending upon

the outcome of the investigation.

17. The Writ Petition is allowed to the

above extent. Rule is made absolute. The Writ

Petition stands disposed of accordingly.

18. List for compliance of today's order

on 22nd December, 2017 under caption

"compliance".

            


             [MANGESH S.PATIL]           [S.S.SHINDE]
                  JUDGE                      JUDGE  
          DDC