Bombay High Court
Karuna D/O. Ashok Sharma @ Karuna W/O. ... vs The State Of Maharashtra And Another on 1 March, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:4374-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.983 OF 2023
Karuna D/o Ashok Sharma
@ Karuna W/o. Dhananjay Mundhe ... APPLICANT
VERSUS
1. The State of Maharashtra
through City Police Station,
Parli Vaijinath, Tq. Parali Vaijinathh,
Dist. Beed.
2. Vishakha w/o Ravikant Ghadge ... RESPONDENTS
...
Advocate for Applicant : Mr. S.R. Andhale i/b. Mr. K.A. Khole
A.P.P. for respondent/State : Mr. G.A. Kulkarni
Advocate for respondent No.2 : Mr. S.S. Thombre
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
Reserved on : 15.02.2024
Pronounced on : 01.03.2024
JUDGMENT (PER : MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith. At the joint
request of the parties the matter is heard finally at the stage of admission.
2. This is an application under Section 482 of the Code of
Criminal Procedure, seeking quashment of crime bearing FIR
No.142/2021 registered with City Police Station, Parli Vaijinath, District
Beed on 05.09.2021 as well as the subsequent charge-sheet No.49/2022
and the Special Case No.57/2022, for the offences punishable under
Sections 307, 323, 504, 506 read with Section 34 of the Indian Penal
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Code and Section 3(1)(r), 3(1)(s) and 3(2)(v) of the Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the Atrocities
Act).
3. The sum and substance of the allegations, as can be
discerned from the charge-sheet, can be summarized as under :
i. The respondent No.2 lodged the FIR on 05.09.2021 stating that she
belongs to 'Mahar' Scheduled Tribe. She works as the Taluka
Coordinator of Mahila Arthik Vikas Mahamandal. On that day at
about 13:30 hours, she along with her friends Rachana Ashok
Vhawale, Deepmala Sanjay Sonkamble, Baby Chotumiya Tamboli
and latter's daughter Guddi Chotumiya Tamboli had gone to Vaijnath
Mandir for Darshan.
ii. A woman and a man present near the steps of the temple were
loudly casting some aspiration against sitting minister Dhananjay
Mundhe and declaring the resolve to ruin his political career without
which she will not leave the place. The woman also hurled abuses.
iii. Hearing that the respondent No.2 tried to retort the woman and the
man stating that Shri Mundhe was a saviour of 'Mahar' and 'Mang'
communities and not to utter insulting words against him.
iv. The woman then started asserting that the informant and other
persons assembled there were of inferior communities like 'Mahar',
'Mang' and 'Muslim' and had gathered there by receiving money.
She also asserted that these persons belonging to 'Mahar' and 'Mang'
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had no stature and hurled abuses in filthy language.
v. The respondent No.2 then alleges that when she inquired as to who
that woman hurling abuses was, one Hrushikesh Umaji Rathod told
them that it was the applicant and the other accused. The
respondent No.2 then alleged that when she asked the applicant as
to why she was hurling abuses the applicant caught hold the hand of
Baby Chotumiya Tamboli and pushed her to the ground due to
which Baby sustained injury to the right hand. The other accused
Arun then with a view to kill Guddu Chotumiya Tamboli assaulted
her with a knife and she sustained injury on the abdominal region.
It is then alleged that the respondent No.2 and her companion were
pushed, pulled and abused on caste lines.
4. It appears that the crime was registered soon after the FIR
was lodged, statements of the respondent No.2 and some other witnesses
were also recorded under Section 164 of the Code of Criminal Procedure.
The injured were referred for medical examination and in due course
the charge-sheet was filed.
5. Learned advocate for the applicant would submit that the
applicant is in fact a legally wedded wife of Shri Mundhe who is a
member of the Legislative Assembly and Minister . The couple has a son
who is aged 15 years and a daughter aged 14 years, however, he has
performed a second marriage and several disputes are going on,
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matrimonial and civil, between the applicant and Shri Mundhe.
He would submit that the crime has been registered as out of such
dispute and the applicant has been falsely implicated.
6. The learned advocate would submit that the applicant with
the co-accused had gone to the temple and were peacefully sitting on the
stairs after Darshan. The respondent No.2 who is an employee of of
Mahila Arthik Vikas Mahamandal which was under the portfolio assigned
to Mr. Mundhe, lodged a false report and could manage to get the crime
registered. In fact, sensing some danger the applicant had even applied
to the police for police protection but was slapped with a notice under
Section 149 of the Code of Criminal Procedure.
7. The learned advocate for the applicant would submit that
accepting the allegations in the FIR and the statements of the witnesses it
is apparent that the applicant was not knowing either the respondent
No.2 or the witnesses much less the caste to which they belong.
Therefore, there was no question of applicant having some intention to
insult and assault them or to hurl abuses on caste line. He would submit
that it is only the intentional insult which has been made punishable
under the Atrocities Act. He would place reliance on the decisions in the
matter of Hitesh Verma V/s. The State of Uttarakhand and Anr.; 2020
AIR(SC) 5584, Gajanan Narayan Makne Vs. State of Maharashtra and
Ors.; 2023 DGLS (Bom.) 714 and Mohammad Wajid and Anr. Vs. State of
Uttar Pradesh and Ors.; AIR 2023 SC 3784.
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8. The learned advocate for the applicant would then submit
that even according to the prosecution the incident had taken place on
the spur of moment without there being any premeditation. Even the
applicant and other accused were not knowing any of the witnesses or
the respondent No.2. It is only after the respondent No.2 tried to
intervene and retort after the applicant allegedly hurled some abuses
against Shri Mundhe the incident is alleged to have occurred. In the
absence of any premeditation, when in the process of some verbal
altercation, as alleged by the prosecution, the other accused had taken
out the knife and assaulted Guddu Chotumiya Tamboli, the applicant
cannot be attributed with the allegations of sharing any common
intention much less sufficient enough to attribute her with an intention to
kill Guddu. It was an act expressly and exclusively attributed to the other
accused. There was not even any abetment. If that be so the applicant
could not have been roped in for the offence of section 307 of the Indian
Penal Code by resorting to Section 34 of the Indian Penal Code.
9. The learned advocate for the applicant submitted a copy of
the death certificate of the other accused Arun Dattatray More and would
submit that he having died on 07.06.2022, it would be abuse of the
process of the law to allow the prosecution to go on against the applicant.
In respect of the offence punishable under Section 307 of the Indian
Penal Code was attributable to him and he being no more, the crime and
the criminal case at least could be quashed to the extent of the applicant
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to the extent of section 307 read with 34 of the Indian Penal Code.
10. Per contra, the learned APP and the learned advocate for the
respondent No.2 would vehemently oppose the application. They would
submit that this is not a fit case to quash the crime and the criminal case.
Already the investigation is over and charge-sheet has been filed. Matter
is awaiting trial before the Special Court. There are statements of
witnesses recorded under Section 164 of the Code of Criminal Procedure.
Even if the applicant was not knowing the respondent No.2, going by the
version of the prosecution, when the respondent No.2 tried to retort
having overheard the utterances against Shri Mundhe and asserted that
he was the saviour and a God for the persons belonging to 'Mahar' and
'Mang' communities, that the applicant could get the knowledge and hurl
abuses on caste lines. Therefore, even if she was earlier not knowing the
caste to which the respondent No.2 belonged, she could get that
knowledge when the incident occurred and then hurled abuses obviously
with intent to insult the respondent No.2. The incident having occurred
in a public view, the prosecution cannot be stalled at this juncture.
11. We have heard considered the submission of both the sides
and perused the papers.
12. Obviously, there could be no dispute about the fact that the
applicant was not knowing either the respondent No.2 or her colleagues -
witnesses who were present at the spot. However, admittedly the
applicant and the other accused were very well present at the scene as
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has been admitted even in the application.
13. It is trite that the accused must have knowledge about the
caste to which the victim belongs and makes some utterances on caste
lines with intention to insult the latter, in order to attract the provisions
of Atrocities Act. However, when the version in the FIR and the
statements of the witnesses expressly mention that during the course of
altercation the applicant derived the knowledge about the caste of the
respondent No.2, thereafter, she has been alleged to have hurled abuses
on caste lines.
14. However, there is a material variance in the statements of
prime witnesses recorded under Section 161 of the Code of Criminal
Procedure and their statements recorded under Section 164 of the Code
of Criminal Procedure. Though initially they seem to have corroborated
the version in the FIR and the supplementary statement of the respondent
No.2, in the statements under Section 164 of the Code of Criminal
Procedure recorded before the Judicial Magistrate First Class they have
changed the version. For that matter even the respondent No.2 has
mellowed down when her statement was recorded under Section 164 of
the Code of Criminal Procedure. Unlike what was stated in the FIR, in
her statement under Section 164, she has merely stated that after the
applicant started hurling abuses against Shri Mundhe and she objected to
it, thereafter, the applicant having said by addressing the respondent
No.2 that these people belonging to 'Mahar', 'Mang' and 'Muslim'
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communities would sell for Rs.200/- and thereafter the applicant is stated
to have declared her resolve to end the political career of Shri. Mundhe.
15. Similar is the version of the witnesses recorded under
Section 164 of the Code of Criminal Procedure. Hrushikesh Umaji
Rathod, Deepmala Sanjay Sonkamble, Rachana Ashok Vhawale and
Guddu Chotumiya Tamboli in their statements under Section 164 have
not attributed the applicant with any allegations about hurling abuses on
caste lines much less addressed to the respondent No.2, that too with an
intention to insult her.
16. Hrushikesh Umaji Rathod has merely stated that when he
had gone to the Temple for Darshan a quarrel was happening between
the applicant and the respondent No.2 and few women from his locality,
a person accompanying the applicant assaulted a lady and the applicant
abused the respondent No.2. Whereas, Deepmala Sanjay Sonkamble in
her statement under Section 164 has in fact denied to be aware about
anything. She has stated that the lady at the Vaijnath Temple was hurling
abuses and calling names to Shri Mundhe and his wife Jayshree. She
merely stood by the side and nothing has happened thereafter. Rachana
Ashok Vhawale in her statement has corroborated the version of the
respondent No.2 but only to the extent of attributing utterances to the
applicant that persons from 'Mahar' and 'Mang' community would follow
by receiving Rs.200/-. So far as Guddu Chotumiya Tamboli is concerned
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who is stated to have sustained injury with a knife which is attributed to
the other accused has not at all stated about any altercation even
between the applicant and the respondent No.2. She merely stated that a
woman and a man were hurling abuses, when she questioned them as to
why they were hurling abuses a crowd had gathered and thereafter
someone caused injury to her mother with a knife on hand and she was
assaulted with a knife on the stomach. She thereafter approached the
police station who sent her to the Government Hospital.
17. If such is the quality of material collected by the
Investigating Officer, we are of the firm view that the circumstances
about which there is also no consistent and precise version much less
attributing several necessary ingredients for constituting the offences
punishable under Atrocities Act, it would be sheer abuse of the process of
law if the applicant is made to face the prosecution for the offences
punishable under that Act.
18. These statements of not only the respondent No.2 but the
other prime witnesses who have been named in the FIR have not come
out with any version precisely making out all the necessary ingredients
for constituting the offences under the Atrocities Act. This is a fit case to
quash the crime and criminal case even to that extent.
19. As far as the offence punishable under Section 307 is
concerned, as has been cursorily observed herein above, there was no
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premeditation. The incident had taken place on the spur of moment. If
after some verbal exchanges between the applicant and the respondent
No.2 the other accused had taken out a knife and allegedly assaulted
Guddu with intention to kill her, in our considered view the offence
punishable under Section 307 of the Indian Penal Code would get
attracted only to the extent of other accused and not the respondent.
Therefore, since the other accused is no more, it would again be the
abuse of process to make the applicant face the ongoing prosecution even
for Section 307 of the Indian Penal Code.
20. This leaves us with the other sections of the Indian Penal
Code like 323, 504 and 506. The applicant is alleged to have caught hold
Baby with hand and pushed her to ground and even has been attributed
with hurling abuses even for which, in our considered view it would not
be appropriate to leave the applicant to face the trial.
21. True it is that there are several other witnesses whose
statements have been recorded under Section 161 but not under Section
164 of the Code of Criminal Procedure like Baby Chotumiya Tamboli,
Pathan Aminabi Pathan Aslam, Yasmeen Siraj Ali, Pranita Amol Shinde
and Sangita Ram Kale, who all have given uniform version on the lines of
the allegations in the FIR. However, neither the respondent No.2 or any
of the other witnesses in their statements recorded under Section 164 of
the Code of Criminal Procedure have attributed specific abuses hurled by
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the applicant or she and the co-accused having threatened any of them.
The abuses were allegedly being hurled by the applicant by calling names
to Shri Mundhe and were not addressed to the respondent No.2 or any of
these witnesses. If this is the quality of material on the basis of which a
final report has been submitted in the form of charge-sheet leading to
registration of the crime, even the ingredients of offences punishable
under Sections 323, 504 and 506 of the Indian Penal Code cannot be
discussed.
22. Though the applicant is alleged to have caught hold hand of
Baby Chotumiya Tamboli and pushed her to ground and she having
sustained some injury to the hand, none of the witnesses whose
statements have been recorded under Section 164 of the Code of
Criminal Procedure have stated about any such incident. There is no
injury certificate of Baby and consequently, in our considered view it
would again be an abuse of the process of law to make the applicant face
the prosecution.
23. Interestingly, statement of Baby could have been recorded
under Section 164 of the Code of Criminal Procedure, when such
statements have been recorded of her daughter Guddu and other
witnesses. As is mentioned herein above, though the FIR and the
statement of Baby recorded under Section 161 mention about the
applicant having caught hold Baby with hand and pushed her to ground
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and she having sustained some injury to the hand, neither respondent
No.2 nor has Guddu in their statements recorded under Section 164 of
the Code of Criminal Procedure have corroborated this fact. Rather
Guddu has stated about someone having assaulted her mother on the
right hand with a knife.
24. In view of such a state of affairs, in our considered view, it is
a case squarely covered by the guidelines laid down in the matter of State
of Haryana and Ors. V/s Ch. Bhajan Lal and Ors.; (1992) SCC (Cri) 426.
25. The Application is allowed. The crime bearing FIR
No.142/2021 registered with City Police Station Parli Vaijinath, District
Beed on 05.09.2021 as well as the subsequent charge-sheet No.49/2022
and the Special Case No.57/2022 for the offences punishable under
Sections 307, 323, 504, 506 read with Section 34 of the Indian Penal
Code and Section 3(1)(r), 3(1)(s) and 3(2)(v) of the Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989 are quashed and
set aside.
26. Rule is made absolute accordingly.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
