Mufiz Miya Bapu Miya Deshmukh ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 7547 Bom

                                      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

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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

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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

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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

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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

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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

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

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

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

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.)
                                 ...
halwai/p.s.