Rajendra @ Raju S/O. Laxman ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 5800 Bom

                                                              CrWP-77-2020.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 77 OF 2020

Rajendra @ Raju s/o. Laxman Chandane,
Age: 30 years, Occu. Painting,
R/o. Wakadi, Tq. Jamner,
Dist. Jalgaon.                                             ... Petitioner

               Versus

1)    The State of Maharashtra,
      Through: Home Secretary,
      Mantralaya, Mumbai,
      Maharashtra State.

2)    Director General of Police
      Maharashtra State.

3)    Superintendent of Police,
      Jalgaon.

4)    Sub-Divisional Police Officer,
      Pachora, Pachora Division,
      Dist. Jalgaon.

5)    Police Inspector of Pahur
      Police Station, Tq. Jamner,
      Dist. Jalgaon.

6)    Chandrashekhar s/o Padmakar Wani
      Age : 40 years, Occu. Agri.
      R/o. Wakod, Tq. Jamner,
      Dist. Jalgaon.

7)    Vinod s/o Suresh Deshmukh,
      Age : 28 Years, Occu. Agri.
      R/o Wakod, Tq. Jamner,
      Dist. Jalgaon.

8)    Namdar s/o Gulab Tadvi
      Age : 35 Years, Occu. Agri.
      R/o Wakod, Tq. Jamner,
      Dist. Jalgaon.                              ...        Respondents


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                                       ...
                   Advocate for Petitioner : Mr. A. L. Kanade
               APP for Respondent Nos. 1 to 5 : Mr. S. G. Sangle
                 Advocate for Respondent No.6 : Mr. P. P. More
                                       ...

                                            CORAM : RAVINDRA V. GHUGE
                                                           AND
                                                    B. U. DEBADWAR, JJ.

RESERVED ON : 18th MARCH, 2021 PRONOUNCED ON : 31st MARCH, 2021

JUDGMENT [PER: B. U. DEBADWAR, J.] :

1. By this petition, the petitioner has claimed following

reliefs :-

"B. By issuing appropriate writ, order or directions to respondent No. 1 to 3 to re-investigate the Crime No.74/2019 (In charge-sheet mentioned Crime No.34/2019) registered at Pahur Police Station on 23.03.2019 for the offences punishable U/s. 363, 364, 120-B, 341 of I.P.C. r/w. Sec. 3(2)(v) of S.C. & S.T. Prevention of Atrocities Act and subsequently added Sec.302, 201 of I.P.C. in Charge-sheet bearing No. 19/2019 dated 31.05.2019 filed before District and Sessions Judge, Jalgaon in resulted into Special Atrocity Case No.06/2019, through the Criminal Investigation Department (CID) or any other Special Investigation Agency except District Local Police Machinery against present respondent No. 6 to 8 who are the original accused No.1, 3 & 4 and also seeking direction to add the names of respondent No. 6 to 8 in the present crime and adding their names may kindly be filed supplementary charge-sheet.

C. By issuing appropriate writ, order or directions to respondents No. 1 to 5 to collect CDR record of present respondent No. 6 to 8 from the date of 01.02.2018 to 01.04.2019 in respect of Mobile Sim No. 9112746544, 9156906335 and 9860888863 in

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the connection of present crime as present respondent no. 6 i.e. original accused no.1 namely Chandrashekhar Padmakar Wani in several occasion contacted with accused namely Mahendra Shamlal Rajput who committed the murder of deceased Vinod Chandane with other co-accused.

D. The order dated 15.6.2019 passed by Additional Sessions Judge Jalgaon whereby accepted the report u/s. 169 of Cr.P.C. filed by Sub Divisional Police Officer Pachora, Pachora Division in the connection of crime No. 174/2019 registered at Pahur Police Station, Tq. Jamner, Dist. Jalgaon and thereby released present respondent No. 6 to 8 from the said crime may kindly be quashed and set aside."

2. Heard Mr. A. L. Kanade, learned advocate for petitioner,

Mr. S. G. Sangle, learned APP for respondent Nos. 1 to 5 and Mr. P.

P. More, learned advocate for respondent No.6. Nobody appeared

for respondent Nos. 7 and 8, despite service of notice.

3. Facts of the criminal case which gave rise to this writ

petition, in nutshell, are as under :

a) The deceased Vinod Chandane was the elder brother of

petitioner Rajendra Chandane, resident of village Wakadi, Tq.

Jamner, Dist. Jaglaon. They were the members of Matang

community which falls in the scheduled castes category. Vinod

Chandane had contested the Gram Panchayat Election as an

independent candidate and elected as a Member of Gram Panchayat

Wakadi. He used to fight for the protection of rights of poor and

needy persons of village Wakadi, with Government Machinery at

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local level, and if necessary to the State level.

b) Accused Sumit Kishor Shastri (Joshi) is also resident of

village Wakadi.

c) In the year 2018, some boys belonging to Matang

community had been to the field, standing in the name of mother of

accused Sumit Shastri, for swimming in the well situated in the said

field. Being annoyed by the same, accused Sumit Shastri along

with his cousin Ishwar Joshi and three more persons, resident of

village Wakadi, caught hold of those boys belonging to Matang

community, in field itself, disgraced and insulted them by moving

them in the village in a naked condition, after beating them

mercilessly.

d) Deceased Vinod Chandane took the cognizance of that

incident and made publicity of the same upto national level. Taking

cognizance of that incident, brought to light by deceased Vinod

Chandane, crime was registered and after trial, Ishwar Joshi, cousin

brother of Sumit Shastri was arrested and prosecuted.

e) Being annoyed by the aforesaid act of Vinod Chandane,

Sumit Shastri and other prominent persons of the village, having

political background, decided to take revenge and teach a lesson to

Vinod Chandane, when they would get opportunity.

f) On 19-03-2019 at about 09:30 a.m. Vinod Chandane

had left his house with motorcycle. Meanwhile, one Ajabsing, who

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wanted to go to his field, requested Vinod Chandane for lift.

Accordingly, Vinod Chandane gave lift and carried him up to his field

and proceeded towards dam.

g) On that day at about 02:00 p.m. one Atul Mahajan met

Ajabsing and informed that he noticed not only motorcycle of the

Vinod Chandane, but also foot wears i.e. chappals and some

papers, lying near the dam. Thus, Ajabsing was the person who

had lastly seen Vinod Chandane alive.

h) On 19-03-2019 itself, Vijay Laxman Chandane, younger

brother of Vinod Chandane, lodged report to Pahur police station

about missing of his elder brother Vinod Chandane, after visiting

and verifying the place near the wall of Wakadi dam, where

motorcycle, chappals, Adhar Card, cell phone and other articles

belonging to Vinod Chandane were found lying.

i) On the basis of the said report, missing case

No.11/2019 was registered at Pahur Police Station at 11:25 p.m.

j) After lodging the missing report on 23-03-2019,

Rajendra Chandane lodged FIR bearing No.74/2019 at Pahur Police

Station inter alia narrating many instances leading to suspicion

against Chandrashekhar Wani and others.

k) On the basis of the said report, Crime bearing No.

74/2019, for the offences punishable under Sections 363, 364, 120-

B, 341 of I.P.C. and Section 3(2)(v) of the Scheduled Castes and

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Scheduled Tribes (Prevention of Atrocities) Act, 1989 came to be

registered against original accused Nos. 1 to 4 viz. Chandrashekhar

Wani, Mahendra Rajput, Namdar Tadvi and Vinod Deshmukh, at

Pahur Police Station.

l) After lodging the aforesaid FIR, dead body of Vinod

Chandane was found, with multiple injuries, in the well situated

within the limits of village Mohadi.

m) During the course of investigation, it was revealed that

accused No.2 Mahendra Rajput, accused No.5 Pradip @ Pintya

Pardeshi, accused No.6 Yogesh Sonar and accused No.7 Sumit

Shastri (Joshi), out of the rivalry for various reasons referred

above, hatched conspiracy and committed murder of Vinod

Chandane, by assaulting him with iron rod on his head and thrown

his dead body in the well situated at Wakadi dam.

n) This was done by accused No.2 Mahendra, accused No.5

Pradip and accused No.6 Yogesh, at the instance of accused No.7

Sumit.

o) According to the prosecution, accused No.7 Sumit was

the master mind. He had given the contract of murder of Vinod to

aforesaid three accused and in execution of the said contract, Vinod

was eliminated by accused No.2 Mahendra, accused No.5 Pradip

and accused No.6 Yogesh. Therefore, they have been charge-

sheeted for the offences punishable under Sections, 302, 201, 120-

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B, 341, 363, 364 of I.P.C. and Section 3(2)(v) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

and, by separate report under Section 169 of Cr.P.C., claimed

discharge of accused No.1 Chandrashekhar Wani, accused No.3

Vinod Deshmukh and accused No.4 Namdar Tadvi.

p) Aforesaid charge-sheet and report under Section 169 of

Cr.P.C. came to be submitted before the Special Court, Jalgaon on

31-05-2019.

q) In pursuance of the notice in respect of report under

Section 169 of Cr.P.C., first informant Rajendra Chandane appeared

before Special Court and submitted his protest petition Exhibit-24

on 14-06-2019, inter alia contending that he had grave suspicion

against the aforesaid three accused, against whom I.O. had claimed

discharge alleging that after investigation no evidence to connect

them with the incident was found. According to Rajendra

Chandane, his brother had made various complaints to the various

authorities against Chandrashekhar Wani, in respect of

misappropriation of funds of Gram Panchayat, committed by

Chandrashekhar Wani by playing fraud.

r) That being the reason, involvement of Chandrashekhar

Wani, Vinod Deshmukh and Namdar Tadvi, in the murder of his

brother Vinod Chandane, is sure and certain.

s) They are the persons who, along with other four

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accused, hatched the conspiracy to eliminate Vinod Chandane and

in execution of that plan they ultimately eliminated Vinod

Chandane.

t) Chandrashekhar Wani was the main person of the

conspiracy under which brutal murder of Vinod was committed.

Therefore, they are required to be tried along with four accused,

against whom charge-sheet is filed.

u) Having heard learned advocates for both the sides, learned

Judge of Special Court accepted the report under Section 169 of

Cr.P.C. and discharged aforesaid three accused viz. Chandrashekhar

Wani, Vinod Deshmukh and Namdar Tadvi, holding that after

conducting thorough investigation, no incriminating material was

found against them. In the FIR lodged by Rajendra Chandane only

suspicion was raised against the aforesaid three accused. Nothing

was placed before I.O. to substantiate the said suspicion.

Moreover, after investigation, it was found that another four

accused (against whom charge-sheet is filed), have committed the

murder of Vinod, after hatching conspiracy. Therefore, protest

petition is liable to be discarded.

v) It is pertinent to note that, after about seven months of

acceptance of report under Section 169 of Cr.P.C., Rajendra

Chandane, first informant of the case, has approached this Court

with present writ petition, claiming various reliefs, including relief of

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quashing of the order dated 15-06-2019, passed by Additional

Sessions Judge, Jaglaon.

4. While taking us through the paper-book annexed to the

petition, Mr. Kanade vehemently argued that Chandrashekhar Wani

is a rich person having strong political background. He had

indulged in misappropriation of funds allocated to the Gram

Panchayat for disbursing the same to the needy persons, under

various schemes sponsored by the Government. His brother Vinod

Chandane was efficient and loyal member of Gram Panchayat. He

was deadly against corruption and misappropriation of Government

money. Number of times, he had exposed Chandrashekhar Wani.

He had made complaints against Chandrashekhar Wani to various

authorities for the act of his indulging in fraudulently

misappropriating funds of the Gram Panchayat and thereby causing

harm to the downtrodden people, for betterment of whom funds

were allotted by the Government. Therefore, Chandrashekhar Wani

had grudge against his brother Vinod Chandane. Many times

Chandrashekhar had given threats of elimination, to his brother

Vinod Chandane. This being the motive, which is very material

aspect, involvement of three accused viz. Chandrashekhar Wani,

Vinod Deshmukh and Namdar Tadvi, in the incident of abduction

and murder of his brother Vinod Chandane, is sure and certain.

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5. According to Mr. Kanade, investigating officer failed to

investigate the matter in the light of aforesaid motive. He had not

taken efforts to collect evidence in respect of misappropriation of

funds of Gram Panchayat, committed by Chandrashekhar Wani.

Having regard to the totality of the allegations made in the missing

report and FIR, investigating officer ought to have seized cell

phones of all the aforesaid three accused, and then collect CDR and

SDR reports from concerned cellular companies and verify as to

whether they were parties to the conspiracy under which Vinod

Chandane was brutally killed. Without collecting appropriate

documentary evidence and other evidence, I.O. has submitted false

report of discharge and learned Special Court has wrongly accepted

the same without considering the protest petition submitted by

Rajendra Chandane. Therefore, it is just and necessary to set aside

the order dated 15-06-2019 passed by the Special Court, Jalgaon,

by which respondent Nos. 6 to 8 who are the original accused Nos.

1, 3 and 4 viz. Chandrashekhar Wani, Vinod Deshmukh and Namdar

Tadvi, have been discharged by accepting report under Section 169

of Cr.P.C. and direct respondent Nos. 1 to 5 to re-investigate the

matter, collect the additional evidence in the light of averments

made in the missing report and FIR, including CDR and SDR reports

of cell phones of aforesaid three accused, and file supplementary

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charge-sheet against the said accused.

6. Per contra, Mr. P. P. More, learned advocate

representing respondent No.6, strenuously argued that the petition

is baseless and misconceived. I.O. has investigated the matter

thoroughly, having regard to the allegations made in missing report

and FIR. After investigation, no prima facie evidence showing

involvement of respondent Nos. 6 to 8 found in the crime.

Therefore, he had no other option than to submit the report under

Section 169 of Cr.P.C. against them.

7. Rajendra Chandane, first informant, had not submitted

any evidence to substantiate his suspicion. During the course of

investigation, number of witnesses came to be examined, but

nobody made any kind of incriminating statement against

respondent Nos. 6 to 8. In the absence of prima facie evidence,

only on the basis of baseless suspicion raised in the FIR, respondent

Nos. 6 to 8 cannot be dragged to face the trial. The I.O. had no

reason to act hand in glove with respondent Nos. 6 to 8. Had the

police hand in glove with respondent Nos. 6 to 8, they would not

have arrested respondent Nos. 6 to 8 and sought their police

custody. In spite of doing in-depth investigation, nothing was found

against them. Now, case is reached to the stage of framing charge.

After commencement of trial, if any incriminating evidence comes

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on record against respondent Nos. 6 to 8, or in the meantime I.O.

comes across any cogent evidence, then respondent Nos. 6 to 8 can

be again prosecuted by filing supplementary charge-sheet, but at

this juncture, only on the basis of vague suspicion raised by

Rajendra Chandane, none of the reliefs as prayed by him can be

granted. Therefore, writ petition is liable to be dismissed.

8. Mr. Sangle, learned APP adopted aforesaid arguments

advanced by Mr. More and additionally argued that cell phones of

accused Nos. 2, 5, 6 and 7 were seized, CDR and SDR reports of

the same were collected from cellular companies of those cell

phones and after cross verifying the said CDR and SDR reports,

involvement of those four accused were found. However, no

involvement of respondent Nos. 6 to 8 was found. Therefore, there

is no substance in saying that I.O. did not investigate the matter

properly, in respect of respondent Nos. 6 to 8.

9. In the light of aforesaid submissions, we have carefully

gone through the record in it's entirety. It is pertinent to note that

the petitioner is claiming prosecution of respondent Nos. 6 to 8,

only on the basis of suspicion. In the absence of prima facie

evidence, only on the basis of allegations made in the missing

report and the FIR that deceased Vinod Chandane was exposing

Chandrashekhar Wani by way of making various complaints to

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various authorities alleging that he had misappropriated funds

allocated to the Gram Panchayat for disbursement of the same to

needy persons under various Government schemes, inference

cannot be drawn that respondent Nos. 6 to 8 were also party to the

conspiracy hatched for commission of murder of Vinod Chandane.

10. It is a matter of record that during course of

investigation neither Rajendra Chandane had submitted any

documentary evidence nor I.O. has come across cogent evidence,

on the basis of which it can be gathered that respondent Nos. 6 to 8

were also parties to the conspiracy, under which murder of Vinod

was committed.

11. When there is no evidence showing that respondents

No. 6 to 8 were parties to the conspiracy hatched for commission of

crime i.e. murder of Vinod Chandane, report under Section 169 of

Cr.P.C. submitted by the I.O. vis-a-vis order passed by the learned

Special Court accepting the said report, cannot be said to be

incorrect.

12. Having regard to the date of submission of report under

Section 169 of Cr.P.C., date of the incident, date of arrest of

respondent Nos. 6 to 8 and the date of filing of present writ

petition, as on today, even if by accepting allegations made in the

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FIR, directions are given for obtaining CDR and SDR report from the

concerned cellular companies of cell phones of respondent Nos. 6 to

8, which were seized from them immediately after their arrest, then

also, no purpose would be served, as after one year call details of

every cell phone gets deleted from the data storage of server of

concerned cellular company. From this angle also, relief pertaining

to giving direction to respondent Nos. 1 to 5 as prayed in prayer

clause 'C' of the petition, becomes redundant.

13. Since, the averments made in the writ petition are

vague as to the lapses in the investigation, relief of directing

respondent Nos. 1 to 5 for conducting further investigation cannot

be granted. Had the petitioner pinpointed particular aspect of the

case left uninvestigated then, further investigation in respect of that

aspect could have been directed. Instead of pinpointing what is left

to be investigated, petitioner went on harping on previous enmity

and insisting for re-joining respondent Nos. 6 to 8 in the criminal

case, only on the basis of the same, when there is no evidence of

their participation in the conspiracy hatched by the rest of the

accused who have been charge-sheeted.

14. Record reveals that after receiving the complaint made

by deceased Vinod Chandane, in-charge officer of Pahur Police

Station had summoned him, so as to verify the contents of the

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complaint and proceed further. But in spite of calling him time and

again, deceased Vinod did not approach Pahur Police Station, in

connection with the complaint he had made against accused

Chandrashekhar Wani. This conduct of the deceased cannot be lost

sight of.

15. On the basis of CDR and SDR reports, nexus of accused

Nos. 2, 5, 6 and 7 with the homicidal death of Vinod Chandane

established, and hence, they have been rightly charge-sheeted.

CDR and SDR reports do not reveal about calling by respondent

Nos. 6 to 8 to any of the charge-sheeted accused or receiving calls

from them, in relevant period. So also, nobody from the witnesses

spoke that they saw respondent Nos. 6 to 8 in the company of

deceased Vinod Chandane, prior to his disappearance. Therefore,

from any angle, discharge of respondent Nos. 6 to 8 cannot said to

be incorrect.

16. It is pertinent to note that I.O. gets every right to file

supplementary charge sheet against respondent Nos. 6 to 8, if

some evidence establishing their involvement in the crime is found.

Therefore, if the I.O. comes across such evidence or during the

course of evidence something comes on record, prima facie

establishing involvement of respondent Nos. 6 to 8 in the incident,

then they can very well be directed to face the trial, by invoking

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powers under Section 319 of Cr.P.C. But in any case, at this

juncture, either relief of re-investigation or giving direction to police

for calling CDR and SDR reports of cell phones of respondent Nos. 6

to 8 and verifying the same or quashing the order accepting the

report under Section 169 of Cr.P.C., passed by the Special Court,

Jalgaon can not be granted.

17. In view of the above, writ petition, being devoid of

merits, is dismissed.

(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)

SVH

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