Popat Vamanrao Kapase Vs the State of Maharashtra

CAG-3265.10

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE - CRIMINAL
CRIMINAL APPLICATION NO.3265 OF 2010

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Tukaram Vitthal Shelke.... Applicant
Vs.
The State .... Respondent

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S/Shri O.A. Siddiqui and Rajendra Rathod
for the Applicant.

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Ms P.P. Shinde, APP, for the State.

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WITH

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CRIMINAL APPLICATION NO.3151 OF 2010

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Sanjaykumar P. Pathak.... Applicant
Vs.
The State of Maharashtra.... Respondent

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S/Shri A.A. Kumbhakoni with V.V. Purwant
for the Applicant.
Ms S.D. Shinde, APP, for the State.

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AND

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CRIMINAL APPLICATION NO.3230 OF 2010

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Popat Vamanrao Kapase.... Applicant
Vs.
The State of Maharashtra.... Respondent

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S/Shri S.V. Kotwal with Siddharth R. Karpe
for the Applicant.

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CAG-3265.10

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2

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Ms S.D. Shinde, APP, for the State.

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CORAM: R.C. CHAVAN, J.

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DATED: AUGUST 26, 2010

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P.C:

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1.These three applications for bail are
filed by three officers from the Forest
Department who are said to have been
instrumental in provoking one Omprakash
Hiremath to commit suicide. The facts which are
relevant for deciding these three applications
are as under:

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2.One of the applicants, Pathak, was
serving as Conservator of Forest at Pune and
the two other applicants Shelke and Kapase were
serving under him. The victim Omprakash was
P.A. of a former Member of the Legislative
Assembly. Under the signature of Pathak, an
advertisement was issued for recruitment in the
Forest Department. Suresh Dattatraya Tale,
Nagesh Malinath Bhandarkavthe, Santosh Mahadeo
Barure, Ambadas Ramchandra Bagle and Vijaykumar
Iranna Hiremath were the prospective candidates

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who had applied for recruitment. Deceased
Omprakash had stated that he knew Pathak and

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therefore he could get the needful done. These
five persons, therefore, agreed to pay sums
which Omprakash is stated to have demanded on
behalf of Pathak. Parts of the amounts were
collected and handed over to Shelke on
24-10-2009. Pathak was stated to be in a white
car which was parked at some distance from the
place where this transaction took place. Again
on 13-11-2009 some further sums were received
by Shelke. The boys, however, did not get any
employment and their names did not figure in
the list of selected candidates. The candidates
as well as Omprakash are alleged to have
approached the trio but were warded off.
Eventually, on 22-3-2010 Omprakash committed
suicide. He left a suicide note specifically
stating that he had paid a sum of Rs.8,75,000/-
collected from the five candidates himself to
Phatak and yet Phatak did not employ those
persons. He states that when he went to see
Pathak, Pathak even refused to recognise him
and, therefore, he was driven to commit
suicide, fearing defamation. Thereafter, a
report was lodged and investigation commenced.
In the course of the investigation, the police
recorded statements of the five candidates. All
of them said that monies were actually received
on two occasions by Shelke. They did not state

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4 CAG-3265.10

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having seen Phatak. They refer to Kapase�s
presence on both the occasions but do not state
that Kapase participated in the transaction.
The investigation in the case is over and
charge-sheet has been filed. Two of the
applicants are in jail since 31-3-2010 and the
third is in jail since 12-4-2010.

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3.I have heard the learned counsel for
the applicants, the learned APPs for the State
as well as the learned counsel representing the
victim�s family members. The learned counsel
for the applicant Kapase pointed out that
Kapase had absolutely no role to play in the
entire transaction and he was merely present.
Therefore, there is no question of Kapase being
kept behind bars. The learned APP also could
not point out complicity of Kapase in any of
these events. Therefore, Criminal Application
No.3230 of 2010 would have to be allowed.

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4.As far as Shelke and Pathak are
concerned, learned senior counsel appearing for
Pathak drew my attention to a judgment of the
Supreme Court in Chitresh Kumar Chopra v. State
(Govt. of NCT of Delhi), reported in 2010 All
MR (Cri.) 1331 in support of his contention
that the act attributed to Pathak could not

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5 CAG-3265.10

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amount to abetment to commit suicide. He
submitted that Pathak had neither instigated
the victim to commit suicide nor had engaged in
any conspiracy to abet the commission of
suicide by the victim. It is, however,
significant that though before the Supreme
Court what was challenged was the framing of
charge of offence punishable under Section 306
of the IPC by the Additional Sessions Judge at
Delhi, the Supreme Court dismissed the appeal
leaving the charge as it was. The Supreme
Court, relying on its earlier judgment in
Ramesh Kumar v. State of Chhattisgarh {(2001) 9
SCC 618}, observed in paras 14 and 15 of the
judgment inChitresh Kumar Chopra�scase
(supra) that abetment could also be by acts or
by a continued course of conduct creating such
circumstances that the deceased was left with
no other option except to commit suicide. The
learned APP as well as the learned counsel for
the victim�s family members submitted that the
conduct of Pathak and Shelke in shrugging
themselves off after taking money was such as
to leave the deceased with no other option but
to commit suicide. This aspect may best be gone
into at the trial by the learned trial Judge.
It cannot be said that the judgment in Chitresh
Kumar Chopra�s case would be decisive of the

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complicity of the applicants in the suicide
committed by Omprakash.

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5.The learned counsel also placed
reliance on two judgments of this Court in
Shriram Vishwanathji Milkewar v. State of
Maharashtra, reported in 2008 (1) Bom.C.R.
(Cri.) 46 and Santosh Nathumal Goenka & another
v. State of Maharashtra, reported in 2010 (1)
Bom.C.R. (Cri.) 233. In both the cases, this
Court has held that the acts attributed to the
applicants therein could not amount to abetment
to commit suicide. In Shriram Vishwanathji

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Milkewar�s case (supra), money had been paid by
the victim for securing employment. The Court
observed that assuming that the accused did not
provide employment, it would not amount to
abetment to commit suicide. In Santosh Nathumal
Goenka�s case (supra), the victim had been
continuously subjected to demand for repayment
of the money which according to the victim had
been repaid many times. The victim committed
suicide because of these demands. The Court
held that the suicide could not be considered
as a sequel to the persistent demands.

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6.As observed by the Supreme Court in
Chitresh Kumar Chopra�s case, relying upon the

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judgment inRamesh Kumar v. State of

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Chhattisgarh (supra), the question as to what
triggered suicide by a person would depend on
the facts of each case and the state of mind of
the person concerned and, therefore, it cannot
be said that the two judgments of this Court
lay down any proposition of law that in such
cases invariably an inference that there was no
abetment to commit suicide should be drawn.
This, too, has to be left to be decided at the
trial.

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7.The learned counsel for the other two
applicants pointed out that the suicide note
makes no reference to Shelke and puts the
entire blame on Pathak. Omprakash had not
stated having paid anything to Shelke. In fact,
he claimed to have paid Pathak by his own
hands. The learned counsel points out that the
evidence of the five candidates who had been
duped is to the contrary and the amounts are
shown to have been paid to Shelke and the
candidates have not even seen Pathak. The
candidates were present when Omprakash caused
monies to be paid to Shelke. Now this
discrepancy too is something which is to be
left to be decided by the learned trial Judge.
It is not necessary to comment upon this

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CAG-3265.10

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discrepancy at this stage.

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8.Since the investigation is complete,
charge-sheet has been filed and since none of
the offences with which the applicants are
charged with is punishable with imprisonment
for life and the maximum punishment to which
the applicants could be sentenced to suffer
imprisonment is for 10 years, no useful purpose
would be served in keeping the applicants
behind bars till they are tried, particularly
since all the applicants are Government
servants and are not likely to run away or be
unavailable for trial.

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9.The learned APP expressed apprehension
that since Pathak is a high ranking officer, he
is likely to influence the witnesses and tamper
with the evidence. The evidence against Pathak
is in the form of a suicide note. Therefore, it
is doubtful as to how Pathak could influence
this evidence. In any case, this apprehension
could be taken care of by imposing suitable
conditions.

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10.In view of the above, all the three
applications are allowed; the applicants in all
the applications be released on bail on their

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9 CAG-3265.10

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furnishing P.R. Bond in the sum of Rs.50,000/-
each with one or more solvent surety in the
like amount in each of these applications. The
applicants shall attend Yerawade Police
Station, Pune, on every first Sunday of the
month in between 10:00 a.m. to 1:00 p.m. till
the trial is over. The applications stand
disposed of.

Popat Vamanrao Kapase v. the State of Maharashtra

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Popat Vamanrao Kapase v. the State of Maharashtra

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