Pandurang S/O Baliram Patil vs Sarangdhar S/O Govinda Dhore And ...
2021 Latest Caselaw 3573 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                    NAGPUR BENCH, NAGPUR



           CRIMINAL WRIT PETITION NO.345 OF 2019




Ramesh s/o. Upasrao Godbole,
Aged 47 years, Occ. Service,
r/o. Plot No.24, Pooja Colony,
Farshi Stop, Amravati.           ........    PETITIONER



     // VERSUS //



1. State of Maharashtra,
   through Police Station,
   Chikhaldara, Tq.Achalpur,
   District Amravati.

2.Superintendent of Police,
  Amravati Rural,
  Amravati.                      .........       RESPONDENTS

____________________________________________________________
Mr.S.P.Bhandarkar, Advocate for the petitioner.
Mr.N.R.Patil, A.P.P. for Respondent Nos. 1 and 2.
                         2


                      CORAM      : SUNIL B. SHUKRE &
                                   AVINASH G. GHAROTE, JJ.

DATE : 25.2.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J) :

1. Rule. Rule made returnable forthwith. Heard finally by

consent.

2. We have heard this matter quite extensively today and it

was heard at great length on the last two occasions. At the time of

each of these hearings, the Investigating Officer was also personally

present. We have gone through the case diary. We have also

considered the impact of four circumstances which, in the opinion of

learned Counsel for the petitioner, create a suspicion about the cause

of death.

3. Mr.S.P.Bhandarkar, learned Counsel for the petitioner

adverting to two of such circumstances submits that top of deceased

Saloni was pulled upwards revealing some part of her brassiere and

her jeans pant's button was also opened and that the parents of

deceased Saloni including the petitioner/father, suspected that just

before so called accident, there must have taken place some sort of

heated exchange of words or altercations between the boys and girls

who were on pleasure trip to Chikhaldara on 15.7.2018 and this was

all the more so because, as thought by the petitioner, all the boys and

girls including deceased Saloni were drunk. The boys and girls, who

were friends of Saloni and who were accompanying Saloni on the

pleasure trip were Nayan Bhusari, Abhilash Yeotikar, Yugandhara

Warde, Ashish Mohod and Sushil Kadu.

4. We have gone through the statements of these boys and

girls and we find that all of them have stated similar versions and the

version is about the car which met with accident, having got skidded

and falling into the gorge which was about 125 ft. deep and that this

was a pure case of accident. They have also stated that while

tumbling down the steep slope of the mountain, the door on the

opposite side of the driver of car got opened due to which Saloni,

who was occupying that seat, got flung outside the car and she fell

down on the ground there; while remaining boys and girls, who

were occupying the car at that time, continued to be inside the car.

Their statements also show that Saloni, with the help of some good

samaritan, was taken by a Baleno car to hospital at Chikhaldara and

on way to the hospital, it is further seen, as Saloni was gasping for

breath, her top as well as full pant were loosened up somewhat by

those who were taking her to the hospital and that was how her

parents noticed, when they came to see dead body of Saloni, that her

top was somewhat pulled up exposing brassiere of Saloni and the

button of jeans full pant was in open condition. This explanation, at

this stage, cannot be rejected and so no doubt could be expressed

about such condition of clothes of the deceased.

5. The above statements, it can be further seen, do not

show suspicion about narration of the incident, which was, in fact,

an accident, by the boys and girls accompanying deceased Saloni.

Besides, the post mortem report shows that there were hardly any

external injuries found to be present on the dead body of Saloni. But

there were severe internal injuries caused to the lung, liver and

spleen, which ultimately proved to be fatal for deceased Saloni. The

post mortem report shows that the probable cause of death of Saloni

was "Cardio-respiratory arrest due to haemorrhagic shock due to the

injuries to vital organs such as lung, liver and spleen". The Viscera

Report has also been received and it shows that no poison in viscera

as well as sample of blood was detected. So the findings recorded in

the post mortem report now have been confirmed and the cause of

death as "Cardio respiratory arrest" triggered by the injuries to the

vital organs namely lung, liver and spleen is now established. These

findings are also supported by what has been actually seen upon

dissection of dead body of Saloni. When abdomen was opened, the

doctor conducting the post mortem examination found presence of

500 ml of free blood in the peritoneal cavity of the abdomen and

further found that tear (5 cm x 2 cm) was present over right lobe of

liver and another tear of 3 cm size was found over spleen. The post

mortem report also noted that laceration (8 cm x 2 cm) was noticed

over lower lobe of right lung and it was also noticed that there were

multiple contusions over surface of left lung and a small tear present

at the lower lobe. These internal injuries were severe in nature and

they support the opinion recorded by the doctor as regards the cause

of death. This very post mortem report, however, finds hardly any

external injuries except the minor abrasions found all over the body

and slight abrasion present over back portion. The post mortem

report also notes absence of any fracture of bones.

6. Now, if it is to be accepted that there was a commotion

and perhaps assault before the accident and a show of accident was

made, there would have been certainly some or other kind of

external injuries. Then, the petitioner does not have any idea about

the manner in which so called or imagined assault may have taken

place. The petitioner does not say that some hard and blunt object

was used to hit Saloni on her abdomen. In fact, with this

background, it appears to us that the theory of commotion and

assault as of now is only in the realm of imagination of the petitioner

and it has so far not travelled beyond that. We would be very much

willing to accept this theory if any other circumstance, which would

atleast suggest that there was indeed a reasonable possibility of

assault having taken place, had been pointed out to us or brought on

record by the petitioner. But, it is not so. It is also not the case of the

petitioner that there was some motive for the other boys and girls

accompanying deceased Saloni at the relevant time to look down

upon Saloni and eliminate her for that reason. So, as of now, the

theory of some altercation, fight and attack cannot be accepted.

7. It is also submitted by the learned Counsel for the

petitioner that there was a Baleno car involved in the scene post

accident as it was by this car, as stated by the boys and girls, that

Saloni was taken to Chikhaldara hospital, and that this is another

suspicious circumstance. He submits that this car has never been

traced out nor any attempt has been made to find the driver of the

car and record his statement. Mr.Patil, learned A.P.P. submits that

reasonable effort in this regard has been made and in support, he has

produced before us the entry taken in this regard in the case diary.

We have gone through the same and are satisfied that, in spite of

reasonable efforts having been made by the Investigating Officer, no

success could be notched by him in this regard. So, nothing amiss

could be seen in the investigation made so far by the Investigating

Officer just because till date said car and it's driver have not been

traced out.

8. Mr.S.P.Bhandarkar, learned Counsel for the petitioner

further submits that the petitioner had visited the spot of incident

after the accident and he had noticed that one blue shirt was lying

there ,which he picked up and brought it home just to inquire whose

clothing could it be and the petitioner submits that his wife upon

inspection of the blue shirt, told him that such kind of shirt was worn

by Nayan Bhusari, one of the friends of Saloni who had gone along

with her to Chikhaldara. Learned Counsel for the petitioner submits

that this shirt though lying at the spot of incident and was belonging

to Nayan Bhusari, was not seized by the Investigating Officer nor any

investigation was made by him in that regard. According to him, this

is fourth suspicious circumstance. We do not understand the purpose

for which the said shirt was picked up and brought home by the

petitioner. If the petitioner had found that shirt was lying at the spot

of incident, his first duty was that he ought to have given it's

information to the Investigating Officer immediately and then waited

for the Investigating Officer to take further action in the matter as

warranted by law. The petitioner, however, did not perform his duty

and instead, brought home said shirt. Now, the position is that

whatever additional evidence that could have been collected by the

Investigating officer has been lost or tampered with and even if any

investigation is now made as regards finding of this shirt, it would

have hardly any evidentiary value. Besides, only because a third

person says that such kind of shirt is worn by the suspect, it cannot

be said with certainty that the shirt belongs to the suspect only and

nobody else for the simple reason that the shirts of similar colour are

abundantly available in open market.

9. Thus, we find that there are no circumstances which

could be said to be suspicious reasonably leading the needle of

suspicion towards the boys and girls who were accompanying

deceased Saloni on the fateful date. The investigation that has been

so far carried out by the Investigating Officer, as seen from the

careful perusal of the case diary, is satisfactory and we do not see

that there was something lacking in the efforts so far made by the

Investigating Officer.

10. In these circumstances, we are of the view that no reliefs,

as prayed for by the petitioner, could be granted atleast as of now

and this petition deserves to be dismissed with liberty.

The petition, therefore, stands dismissed with liberty to

the petitioner to approach the Investigating Officer and if required,

this Court also, for fresh consideration in accordance with law in case

any such new material, as would require further consideration, is

discovered.

                         JUDGE                          JUDGE




[jaiswal]
                                        Digitally
                                        signed by
                              Suraj     Suraj Jaiswal
                                        Date:
                              Jaiswal   2021.02.26
                                        18:25:41
                                        +0530