Machindra Eknath Dhanawade And ... vs The State Of Maharashtra
2022 Latest Caselaw 5579 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


              3 CRIMINAL WRIT PETITION NO.761 OF 2022

             MACHINDRA EKNATH DHANAWADE AND OTHERS
                                  VERSUS
                      THE STATE OF MAHARASHTRA
                                     ...
          Advocate for Petitioners : Mr. Andhale Sandip Ramnath
             APP for Respondent-State : Mr. S. P. Deshmukh
                                     ...

                                    CORAM : SMT.VIBHA KANKANWADI, J.
                                    DATE   : 20-06-2022

ORDER :

1. Present writ petition has been filed invoking the Constitutional

powers of this Court under Article 226 and 227 of the Constitution of

India to challenge the order below Exhibit 28 in Sessions Case No.231

of 2021, passed by learned Additional Sessions Judge, Ahmednagar on

12-04-2022 and thereby the charge under Section 306 of Indian Penal

Code kept on the accused persons has been altered to Section 302 of

the Indian Penal Code under Section 216 of the Code of Criminal

Procedure.

2. Heard learned Advocate Mr. S. R. Andhale for petitioners and

learned APP Mr. S. P. Deshmukh for respondent-State.

3. It has been vehemently submitted on behalf of the petitioners

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that in view of the First Information Report lodged by one Tulshiram

Vinayak Madke on 10-09-2021, offence vide Crime No.551 of 2021

was registered with Shevgaon Police Station for the offence

punishable under Section 306, 364, 385, 279, 323, 504, 506 r.w.34

of Indian Penal Code. The investigation was conducted which was in

the form of recording of inquest panchanama, sending the dead

body for post mortem, execution of spot panchanama, seizure

panchanama regarding the clothes, statements of witnesses under

Section 161 as well as 164 of the Code of Criminal Procedure. The

petitioners were released on bail under Section 439 of Cr.P.C. After

the committal of the case, the learned Additional Sessions Judge,

Ahmednagar framed charge for the offence punishable under Section

306, 364, 385, 323, 504, 506 read with 34 of the Indian Penal Code.

The petitioners have pleaded not guilty, and thereafter, the

prosecution filed application under Section 216 of Cr.P.C. at Exhibit

28 stating that perusal of the police report, documents attached to it

and the facts and circumstances are suggesting the offence under

Section 302, and therefore, it be kindly altered. Say of the accused

persons was taken and they have resisted the said application

mainly contending that there is no prima facie case made out for

such alteration. After hearing both sides, the learned Additional

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Sessions Judge has allowed the application and passed the order

about alteration of charge under Section 306 of the Indian Penal

Code to Section 302 read with 34 of the Indian Penal Code, and

thereafter, the charge has also been framed. That order and charge

is under challenge in this writ petition.

4. It has been further submitted on behalf of the petitioners that

as per the FIR itself it was the case under Section 306 of IPC even

on the same day a general diary entry has been taken at 07.10 a.m.

wherein the Police Inspector had noted that persons from Gadewadi

Taluka Shevgaon had met him in police station and told that

deceased Vinayak was murdered by Mukesh Mankar, Rupesh Mankar

and Machindra Dhanwade in the hotel of Machindra Dhanwade by

means of a handkerchief, and therefore, he says that he along with

his staff went to Gadewadi and took the suspected accused persons

in custody, made inquiry with him, so also thereafter the informant

who is the son of deceased was enquired in presence of all the three

accused persons and at that time that his father has not been

murdered but he has hanged himself and committed suicide.

Accordingly he says in the said general diary entry that his

statement has been recorded i.e. written down as well as its

4 CriWP 761-2022

videography has been made. It is also stated in the said general

diary entry that informant has tried to mislead the police for which

the Police Inspector says that he has informed the said fact to his

superiors. This general diary entry is not the part of the charge-

sheet, but it has been obtained under the Right to Information Act.

It has been further submitted on behalf of the petitioners that the

statements of the witnesses also do not indicate that it is a case

under Section 302 of Indian Penal Code. The probable cause of

death is stated to be hanging, and therefore, the said order deserves

to be set aside.

5. The learned APP supported the reasons given by the learned

Additional Sessions Judge for alteration of the charge.

6. At the outset it can be stated that the alteration of the charge

can be made at any point of time before the pronouncement of the

Judgment also. Here, the evidence is yet to be recorded. No doubt

it appears that initially the charge was framed under Section 306

and other sections of Indian Penal code. The endeavour of the

Sessions Judges should be to go through the entire charge-sheet

first and then come to the conclusion under which provisions of law/

offences, the charge can be framed. It need not be restricted to the

5 CriWP 761-2022

sections those have been invoked by the police. This rule applies

even to the stage of taking cognizance. In other words, merely

because the police are giving some sections/offences to a case the

Magistrate or the Sessions Judges are not bound to follow them.

Independent assessment of the material at the time of taking

cognizance as well as while framing charge is the integral part of a

trial.

7. In this case application was moved by the prosecution at

Exhibit 28 stating that the material on record shows something

different and offence under Section 302 of IPC has been made out.

Here, it is to be noted that the general diary entry which the

petitioners are referring was not before the learned Sessions Judge

because even as per the petitioners that general diary entry is not

forming part of the documents with the charge-sheet. It appears

that it was not fetched when the say to Exhibit 28 was called by the

learned Additional Sessions Judge. The application under the Right

to Information Act was filed on 07-05-2022 when the order of

alteration of the charge was passed by the learned Additional

Sessions Judge on 12-04-2022. It is not clear as to why that

general diary entry was taken by Police Inspector on 10-09-2021

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when the First Information Report is of the same date. Further, as

regards that general diary is concerned, if we want to take into

consideration the contents as it is, the Police Inspector appears to

have developed a novel idea that even before the First Information

Report could be filed he had taken the suspected accused into

custody, and in presence of them, he has made inquiry with the

informant. What initial information he had received was that of

murder and that too from three persons including that of the

informant. Why he had not reduced that information into writing

and had not treated it as FIR, is a question, and when that

information which was initially given was disclosing a cognizable

offence. Therefore, the role played by the Police Inspector

Mr.Prabhakar Bhaurao Patil is questionable, yet it can still be said

that the petitioners are at liberty to use that document at any

appropriate stage.

8. It is also stated in the First Information Report that about

eight days prior to the incident there was some dispute arose

between the petitioners and the deceased. Thereafter, on the next

date the petitioners had gone to the deceased house and asked him

to give money, which they wanted to spent for consummation of

7 CriWP 761-2022

liquor, but then the deceased did not agree to that, and therefore,

they had abused and assaulted deceased. They had given threat

that he will not be left alive. It is then stated that the petitioners

have created terror in the village, and therefore, they had not

reported the incident to the police due to the fear. On the next day

again accused Rupesh had given phone call to the informant and

gave abuses and threatened him, and thereafter, when the

informant went to his house around 09.15 p.m. he could find the

accused/petitioners with their four wheeler. Again Rupesh had given

phone call to the informant and gave threat that he will not let the

father alive. Informant could hear the voice of assault and cry of his

father. Informant was searching for the father and he says that he

could find the vehicle parked in front of Hotel Suyog owned by

accused Machindra Dhanwade. He had seen all the three accused

persons assaulting his father, but then informant came back and

took his brother with him to Hotel Suyog. They could see that those

persons who were assaulting the father had gone from that place.

They again searched for the father and they could find him in

hanging position to a tree which was behind the hotel in an

agricultural land. The informant and his brother brought down the

body of the father and took him to Government Hospital where he

8 CriWP 761-2022

was declared dead. He, therefore, says that his father was harassed

by abducting by the accused persons and then he was abetted to

commit suicide, but then the next sentence is that the accused

persons are responsible for the death of his father which is unnatural

(?kkrikrh e`R;w).

9. From the contents of the FIR in fact which is not an

encyclopedia we can get the circumstances under which the offence

is stated to have been committed. Definitely the informant intended

to convey that it was an unnatural death for which he has given the

circumstances about abduction and assault.

10. The inquest panchanama gives the description of the deceased

and especially the point to be noted is that his height is stated about

5 feet 5 inch. At this moment itself we are required to consider the

spot panchanama and it is stated that the same was shown by the

informant. The height of the tree was 8 feet 1 inch and the branch

to which the hanging was noticed was 6 feet. The question would be

whether a person having height of 5 feet 5 inch would commit

suicide with that branch having height from ground 6 feet. The post

mortem report shows the probable cause of death as hanging, but

9 CriWP 761-2022

when such reason is given, two possibilities would be created, one of

suicide and another murder i.e. homicidal. As regards injury noted

in Column No.17, they are thus :-

A) Ligature Mark Present over and around neck with following characteristics :-

1) Present anteriorly above thyroid cartilage, running obliquely and backward upwards toward B/L angle of mandible.

               2)       Breadth :- 1.5 cm. Length : 39 cm Depth 1 cm.
               Gap 3 cm.
                        Length from left ear -4 cm
                        length from right ear -3 cm
                        length from chin -4 cm
                        length from sternal notch -11 cm
               3)       Areas of hyperemia present
                        On internal dissection of neck :-
                        1)       Blood vessels, Bone's - Normal
                        2)       Trachea :- mild hyperemia present
                        3)       Areas of white subcutaneous tissue present
                        beneath mark.


And Column No.18 only gives description of an old injury.                       At this

stage also we can say that the description may not wholly support

the statement of the informant that his father was taken by

assaulting him but still the explanations are possible at the time of

10 CriWP 761-2022

trial.

11. The statements of the witnesses would show that earlier since

about eight days prior to the incident there was dispute and the

petitioners had abused and threatened the deceased. There are

witnesses to the incident that the deceased was taken forcibly in the

four wheeler by the petitioners. Therefore, taking into consideration

all these facts, the learned Additional Sessions Judge was justified in

altering the charge. There is material on record for such alteration

the order passed below Exhibit 28 was certainly within the powers of

the learned Additional Sessions Judge, Ahmednagar under Section

216 of the Code of Criminal Procedure, and therefore, there is no

question of interference that too under writ jurisdiction of this Court.

Hence, petition stands rejected.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-.