Bombay High Court
Mr Chetan S/O Vasant Chowdhary vs State Of Mah., Thr. Pso Ps ... on 24 January, 2023
Bench: G. A. Sanap
-1- APL.649 & 651.2019. Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION NO. 649 OF 2019
APPLICANT : Mr. Chetan S/o. Vasant Chowdhary,
(Original Accused No.4) Aged about 34 years, Occupation:
Service in Indian Army, permanent
resident of Gautam Nagar, Nari
Road, Nagpur.
//VERSUS//
NON-APPLICANTS : 1. The State of Maharashtra, through its
Police Station Officer, Police Station
Jaripatka, Nagpur.
2. Sachin Bhimrao Jambhulkar, Aged
Added as per Court's order
dated 22.07.2019 about 34 years, Occ. Service, R/o.
Type-III, C-2, M.S.E.B. Colony,
Mankapur, Nagpur.
WITH
CRIMINAL APPLICATION NO. 651 OF 2019
APPLICANT : Mr. Anup S/o. Vasant Chowdhary,
(Original Accused No.6) Aged about 33 years, Occupation:
Service, permanent resident of
Gautam Nagar, Nari Road, Nagpur.
//VERSUS//
NON-APPLICANTS : 1. The State of Maharashtra, through its
Police Station Officer, Police Station
Jaripatka, Nagpur.
2. Sachin Bhimrao Jambhulkar, Aged
Added as per Court's order
dated 22.07.2019 about 34 years, Occ. Service, R/o.
-2- APL.649 & 651.2019. Judgment.odt
Type-III, C-2, M.S.E.B. Colony,
Mankapur, Nagpur.
**************************************************************
Mr. P.A. Abhyankar, Advocate for the Applicant(s).
Mr. H.D. Dubey, APP for Non-applicant No.1/State.
Ms. Shweta D. Wankhede, Advocate for Non-applicant No.2.
**************************************************************
CORAM : G. A. SANAP, J.
RESERVED ON : 8th DECEMBER, 2022.
PRONOUNCED ON : 24th JANUARY, 2023.
JUDGMENT
Applicant in Criminal Application No.649 of 2019 is
the accused No.4 and applicant in Criminal Application No.651 of
2019 is the accused No.6 in Sessions Trial No.512 of 2016. They
applied for discharge in Sessions Trial No.512 of 2016 arising out
of Crime bearing No.103/2016 for the offences punishable under
sections 304-B, 306, 498-A read with Section 34 of the Indian
Penal Code, 1860 (for short "IPC"). In view of this, both these
applications are being disposed of by the common judgment. The
learned Additional Sessions Judge, Nagpur vide order dated 12th
April, 2019 rejected the applications made by the applicants for
their discharge.
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02] The facts relevant for decision of the applications can
be summarized as follows:
Deceased Ekta and accused No.5 Alop were married
on 29th January, 2015. Applicants/accused Nos.4 and 6 are the
brothers of accused No.5 Alop. Accused No.1, in the case, is the
mother of the applicants. Accused No.2 is the father of the
applicants. Accused No.3 is the wife of the accused No.6.
03] The crime came to be registered on the report lodged
by brother of the deceased on 24 th February, 2016. Deceased
committed suicide on 24th February, 2016. It is the case of the
prosecution that after marriage, for some time, the deceased stayed
with the accused persons at their house at Nagpur. Accused No.5
Alop and accused No.6 Anup are serving in Army. Deceased Ekta
and accused No.5 Alop went to Jammu and Kashmir at the place
of posting of Alop. They stayed there till December, 2015. It is
stated that after 2-3 months of the marriage, the accused started ill-
treating the deceased. They were alleging that the deceased was not
able to do the household work. The deceased was also forced to do
the extra household work. The accused demanded money of the
share of the deceased from the informant and his mother. The
deceased did not agree for the same. She did not pay any heed to
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their demand. On that count, the accused tortured and ill-treated
the deceased.
04] In January, 2016, accused No.5 Alop was transferred
from Jammu and Kashmir to Allahabad. The deceased insisted to
join him at the place of his posting. The family members did not
allow the deceased to accompany him. It is stated that the accused
No.6 and the family members had gone to the residence of the
accused No.5 at the place of his posting in Jammu and Kashmir.
They all made a demand of money from the deceased. The accused
No.6 would always insist the deceased to observe the family
tradition of taking Ghunghat. On that count also, the deceased was
ill-treated. The informant stated in his report that the deceased
narrated about this ill-treatment and torture meted out to her, to
him and other family members. At once, they had decided to lodge
the report with the police, however, the deceased insisted not to
lodge the report, because at the time the accused No.2 had
sustained the Paralytic Stroke. It is stated that the deceased was
subjected to ill-treatment and torture on account of failure to meet
the demand of money. She was also ill-treated and tortured on
other counts. When the ill-treatment became unbearable, the
deceased committed suicide by hanging from the ceiling fan.
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05] On the basis of the report, the Crime bearing
No.103/2016 was registered against the accused persons. The
investigation conducted in the crime revealed the involvement of
the accused No.1 to 6 in the commission of crime. Therefore, the
charge-sheet came to be filed against all the accused.
06] In the discharge applications, it is the case of the
applicants that no specific role has been attributed to them. The
allegations made against them are vague and general in nature.
Their names have not been specifically mentioned by all the
witnesses. No specific role has been attributed to them by the
witnesses. The material compiled in the charge-sheet is not
sufficient to form a prima facie opinion about their involvement in
the commission of crime. The applicants, therefore, prayed for
their discharge.
07] The main contention of the prosecution while
opposing the applications for discharge is, that the material
compiled in the charge-sheet is cogent and concrete. At this stage,
the said material is sufficient to form a prima facie opinion with
regard to the involvement of the accused in the commission of
crime. The evidence, which has been compiled in the charge-sheet,
cannot be tested on merit at this stage. No case has been made out
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for discharge.
08] Learned Additional Sessions Judge, on consideration of
the material placed on record in the charge-sheet, found that a
specific role has been attributed to the applicants. The learned
Additional Sessions Judge found that the material placed on record
is sufficient to frame the charge and, therefore, rejected the
applications. The applicants are before this Court against the said
order.
09] I have heard Mr. P.A. Abhayankar, learned advocate for
the applicants, Mr. H.D. Dubey, learned Additional Public
Prosecutor for the non-applicant No.1/State and Ms. Shweta
Wankhede, learned advocate for the non-applicant No.2/
informant. Perused the record and proceedings.
10] Learned advocate for the applicants submitted that the
accused No.6 did not stay with the accused No.5 and the deceased
at any time. He is a soldier in the Army and at the relevant time, he
was posted at Delhi. Learned advocate further submitted that the
names of the applicants were not initially mentioned in the First
Information Report (for short "FIR"). Their names were stated in
the subsequent statement of the informant and in the statements of
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some of the witnesses. Learned advocate submitted that even in the
statements of the witnesses, no specific role has been attributed to
them. In order to substantiate his submission, learned advocate
took me through the contents of the FIR and the statements of the
witnesses, relied upon by the prosecution. Learned advocate
submitted that the allegations made by the witnesses are vague and
general in nature. In the statements, the omnibus allegations have
been made against all the accused. Learned advocate submitted
that on the basis of the material compiled in the charge-sheet, the
ingredients of the offences mentioned above have not been made
out. Learned advocate, therefore, submitted that the applicants
deserve to be discharged from this case. It is submitted that the
learned Additional Sessions Judge has not taken all these aspects
into consideration.
11] In order to substantiate his submissions, learned
advocate for the applicants has relied upon the following decisions:
1) Somnath s/o. Ashok Darekar Vs. The State of
Maharashtra & Anr. [2018 ALL MR (Cri) 290].
2) Kahkashan Kausar Alias Sonam Vs. State of Bihar and
Others [(2022) 6 SCC 599].
3) Ramesh Kumar Vs. State of Chhattisgarh [(2001) 9 SCC
-8- APL.649 & 651.2019. Judgment.odt
618.
4) Randhir Singh and Another Vs. State of Punjab [(2004)
13 SCC 129.
5) Sanjay Kumar K. Shinde Vs. The State of Maharashtra
[2015 ALL MR (Cri) 1085].
6) Mahendra Madhavdas Mundada & Ors. Vs. State of
Maharashtra [2015 ALL MR (Cri) 868].
7) Gangula Mohan Reddy Vs. State of Andhra Pradesh
[(2010) 1 SCC 750].
12] Learned Additional Public Prosecutor submitted that
at the stage of framing of charge or decision on the application for
discharge, threadbare analysis and appreciation of evidence is not
warranted. Learned Additional Public Prosecutor submitted that
the evidence, relied upon by the prosecution, cannot be tested on
merit at the stage of framing of charge. Learned Additional Public
Prosecutor submitted that the FIR is not an encyclopedia of the
case on the prosecution. Learned Additional Public Prosecutor
submitted that the basic facts stated in the FIR and the evidence
collected during the course of investigation together have to be
taken into consideration to find out whether the involvement of
the accused has been made out or not. Learned Additional Public
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Prosecutor submitted that the decisions, relied upon by the learned
advocate for the applicants, cannot be made applicable at this stage
of the proceeding. Learned Additional Public Prosecutor submitted
that there is sufficient evidence on record to attribute a specific role
to the accused persons and particularly these applicants. Learned
Additional Public Prosecutor submitted that the facts stated in the
discharge applications and the submissions advanced consistent
with the applications are in the form of defence of the accused.
Learned Additional Public Prosecutor, therefore, submitted that no
error has been committed by the learned Additional Sessions Judge
while rejecting the applications.
13] Learned advocate for the non-applicant No.2/
informant adopted the submissions advanced by the learned
Additional Public Prosecutor. Learned advocate submitted that in
the statement of the informant recorded on 27 th February, 2016, he
has categorically stated that the accused did not attend the funeral
of the deceased, which was held on 25 th February, 2016. Learned
advocate pointed out from the statement of the informant recorded
on 27th February, 2016 that the funeral was performed on 25 th
February, 2016 at 11:00 a.m. Learned advocate pointed out that the
FIR was registered on 24th February, 2016 at 15:03 hrs. Learned
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advocate, therefore, submitted that the report against the accused
persons was lodged before performing the funeral of the deceased
by the informant. Learned advocate submitted that, therefore, this
fact is required to be borne in mind, while appreciating the facts
stated in the FIR.
14] In order to appreciate the rival submissions, I have
minutely gone through the record and proceedings and particularly
to the facts stated in the FIR as well as in the statements of the
witnesses. The report was lodged immediately. The ground of delay
in lodging the report is, therefore, not available to the applicants.
The promptness in lodging the FIR is the relevant fact. The
fundamental object of the FIR is to act as a safeguard against,
"embellishment, exaggeration and forgetfulness". The promptness
displayed in lodging FIR can rule out the possibility of a false
implication in connivance and afterthought. After report, the
investigation in the crime was conducted. The statements of the
witnesses were recorded. The Investigating Officer found the
collected evidence sufficient to establish the complicity of the
accused in the commission of crime and, therefore, he filed the
charge-sheet against all the accused.
15] I have gone through the FIR and the statements of the
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witnesses. Perusal of the FIR would show that all the facts disclosed
during further investigation through the witnesses have not been
stated in detail in the FIR. Certain facts with regard to the torture
and ill-treatment and the reasons for the ill-treatment, which
ultimately led the deceased to commit the suicide, have come on
record in the statements of the witnesses. In my view, one has to
keep in mind the mental condition of the informant, when he
lodged the report. The dead body of his sister was lying in the
hospital. The accused did not take a lead role in the matter and
particularly in the funeral of the deceased. In the backdrop of the
facts prima facie revealed during the course of investigation, one
can easily visualise the mental condition of the informant after the
death of his sister. In my view, this fact would be relevant in this
proceeding all throughout and will have to be taken into
consideration, while appreciating the submission on this point.
16] Before proceeding to look into the material relied upon
by the prosecution to frame the charge against the accused, it
would be necessary to consider the settled legal position required
to be applied, while deciding the application for discharge or at the
stage of framing of charge. In this respect, three decisions of the
Hon'ble Apex Court can be made applicable. The decisions are in
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the cases of Tarun Jit Tejpal Vs. State of Goa and Another [(2020)
17 SCC 556], Niranjan Singh Karam Singh Punjabi, Advocate Vs.
Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Sajjan
Kumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368].
17] The earlier decisions in the cases of Niranjan Singh
and Sajjan Kumar (supra) have been followed in the case of Tarun
Jit Tejpal (supra). It is held in these decisions that appreciation of
evidence at the time of framing of charge under Section 228 of
Cr.P.C. or while considering discharge application filed under
Section 227 of Cr.P.C. is not permissible. The Court is not
permitted to analyse all the material touching the pros and cons,
reliability or acceptability of the evidence. In Tarun Jit Tejpal's
case (supra), it is held that at the time of consideration of the
application for discharge, the Court cannot act as a mouth piece of
the prosecution or act as a post office and may sift evidence in
order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is held that at the
stage of consideration of application for discharge, the Court has to
proceed with an assumption that the materials brought on record
by prosecution are true and evaluate the said materials and
documents with a view to find out whether the facts emerging
-13- APL.649 & 651.2019. Judgment.odt
therefrom taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. At this stage, the
Court is not expected to go deep into the matter and hold that
materials would not warrant a conviction. It is held that what needs
to be considered is whether there is a ground for presuming that
the offence has been committed and not whether a ground for
convicting accused has been made out. It is further held that the
law does not permit a mini trial at the stage of deciding the
discharge application or at the time of framing of charge.
18] In my view, in order to resolve the limited controversy
at this stage and to decide the applicability of the law laid down in
the judicial pronouncement (supra), it would be necessary to go
through the record and proceedings and particularly the material
compiled in the charge-sheet. The FIR was registered on 24 th
February, 2016. In the FIR, the informant stated about the specific
role of the accused persons and ill-treatment meted out to deceased
by the accused persons named in the FIR. In the FIR, the names of
husband, mother-in-law, father-in-law and sister-in-law Shraddha
were specifically mentioned. The names of the applicants were not
mentioned. The names of the applicants and the specific role
attributed to them can be seen from the statement of the informant
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recorded on 27th February, 2016 and the statements of the
remaining witnesses namely Neha friend of the deceased, Deepali
sister of the deceased, Lata mother of the deceased, Krupali wife of
the informant and Ankush husband of Krupali. Perusal of the
statements would show that with names, the role attributed to each
one of the accused has been stated. It is to be noted, at this stage,
that simply because of the absence of the names of the applicants in
the FIR and the specific role attributed to them in the FIR would
not be a ground to discharge them from this crime.
19] In the above context, I may make a useful reference to
the decision of the Hon'ble Apex Court in the case of
Superintendent of Police, CBI and Others Vs. Tapan Kumar Singh
[(2003) 6 SCC 175]. In this case, it is observed that the law does
not require the mentioning of all the ingredients of the offence in
the FIR. It is observed that it is only after completion of the
investigation that it may be possible to say whether any offence is
made out on the basis of the evidence collected by the investigating
agency. It is further held that an FIR is not an encyclopedia, which
must disclose all the facts and details relating to the offence
reported. If one were to search for all the ingredients of an offence
in the FIR, which is only a mere report about the commission of
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cognizable offence, the chances are that very often all those
ingredients may be absent. The details of the crime and the accused
unravelled during the investigation undertaken by the police has to
be taken into consideration.
20] In my view, therefore, on this ground, the prayer for
discharge made by the applicants was rightly rejected by the
learned Additional Sessions Judge. Minute perusal of the
statements of the witnesses and the statements of the informant
would show that they have specifically named all these applicants.
They have attributed a specific role to them and the reason for
torture and ill-treatment to the deceased at their hands. It is not
their case that during the entire investigation, the names of the
applicants were not stated by the witnesses and no specific role was
attributed to them. If the witnesses had not named them or
attributed any specific role to them, then they would have been
justified in contending that there is no evidence at all against them
and, therefore, they are entitled to be discharged. In this case, the
witnesses have attributed a specific role to the applicants. It is to be
noted that the material compiled in the charge-sheet has to be
considered in totality to address the issue of mens rea of the
accused behind the ill-treatment, which drove the deceased to take
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an extreme decision to end her life. If the material on record is
prima facie considered by applying the above stated settled legal
position, in my view, the applications made by the applicants
cannot be allowed. The facts stated in the applications for discharge
spell out the defence of the accused persons. In order to appreciate
their defence at this stage, the exercise of the appreciation of the
material on record would be required to be undertaken. At this
stage, the pros and cons of the material cannot be tested on merit.
No comment can be made with regard to the credibility of the
material, relied upon by the prosecution against them. If it is so
done, then it would cause prejudice either to the prosecution or to
the accused. If the threadbare analysis of the material relied upon
by the prosecution is made at this stage, then in my view, it would
be nothing short of holding a mini trial. The mini trial is not
permissible at the stage of discharge. I, therefore, agree with the
learned Additional Sessions Judge that there is a material on record
against the applicants and the said material is sufficient to prima
facie establish their complicity in the commission of crime.
21] I have perused the decisions relied upon by the learned
advocate for the applicants. In the case of Somnath Darekar
(supra), the Division Bench of this Court found that there was no
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material at all to warrant the continuation of the prosecution and
based on this finding, the FIR by invoking the provisions of
Section 482 of the Cr.PC for the offences punishable under
Sections 498-A, 306 and 304-B IPC was quashed. The Division
Bench found that the material on record was not sufficient to
establish the basic ingredients of Section 107 of the IPC.
22] In the case of Kahkashan Kausar (supra), the Hon'ble
Apex Court has observed that the tendency of implicating the
relatives of the husband in the matrimonial disputes has increased
without analysing the long term ramifications of a trial on the
complainant as well as the accused. It is observed that before
proceeding against the relatives, the Court must be satisfied that
there is a prima facie case to proceed against them. The relatives of
the husband cannot be proceeded with in the absence of a prima
facie case made out against them on the basis of the material.
23] In the cases of Ramesh Kumar (supra), Randhir Singh
(supra) and Gangula Mohan Reddy (supra) after full-fledged trial,
the evidence on record was found lacking to make out the basic
ingredients of the offence of abetment of suicide. The Hon'ble
Apex Court in these decisions observed that abetment involves a
mental process of instigating a person or intentionally aiding that
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person in doing of a thing. It is held that more active role which
can be described as instigating or aiding the doing of a thing is
required before a person can be said to have abetted the
commission of the offence under Section 306 of the IPC. In these
cases, the evidence on record on appreciation was found not
sufficient to meet these requirements. In my view, in the case on
hand, the question of appreciation and threadbare analysis of the
evidence would arise at the stage of decision of the case on merits.
24] The same proposition of law is laid down in the cases
of Sanjay Kumar K. Shinde (supra) and Mahendra Madhavdas
Mundada & Ors. (supra).
25] In my view, the proposition of law laid down in the
judgments relied upon by the learned advocate for the applicants is
of no help to the case of the applicants at this stage. It is to be
noted that there is material and evidence on record to show that
the names of the applicants have been stated by all the witnesses.
Almost all the witnesses have attributed specific role to them. The
prosecution has invoked Section 34 in the crime. In my view,
therefore, the threadbare analysis, appreciation of evidence and the
finding based on undertaking such exercise at this stage would
certainly prejudice either the accused or the prosecution. Such
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exercise is not permissible at this stage, as held by the Hon'ble
Apex Court in the decisions (supra). It is true that the applicants
are serving as Soldiers in Military. They would be required to
undergo the ordeal of the trial. However, solely on this ground, the
material on record cannot be discarded.
26] In my view, the learned Additional Sessions Judge took
all these aspects into consideration. The order passed by the
learned Additional Sessions Judge is in accordance with law. No
case has been made out by the applicants to allow their applications
for discharge. Therefore, the applications deserve to be dismissed
and are dismissed accordingly.
27] Rule is discharged. No costs.
(G. A. SANAP, J.)
Vijay
Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Signing Date:24.01.2023 17:43
