Dismissed

Kesharbai Wd/O Sakharam Barbinde and Anr. v. the State of Maharashtra and Anr.

Bombay HC23 Feb 2017APPLN/463/2016

Case brief

AI extract

What is this about?

Criminal Application seeking quashing of an FIR alleging abetment of suicide under IPC 306 and domestic cruelty under IPC 498A. The High Court rejected the application, holding that facts must be accepted as alleged and quashing is not permissible without a trial. The court reserved the applicants' right to apply for discharge separately.

What did the court decide?

Application for quashing of the First Information Report stood rejected.

Kesharbai Wd/O Sakharam Barbinde and Anr. Vs the State of… — Quashing and FIR | Bombay HC (2017)

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463.2016 Cri.Appln.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.463 OF 2016

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1. Kesharbai wd/o Sakharam Barbinde Age; 65 yrs, Occ: Household,

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2. Rajendra @ Raju s/o Sakharam Barbinde Age: 26 yrs, Occ: Labour,

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Both R/o. Antarwala, Post-Kajala,
Tq. & Dist. Jalna. APPLICANTS

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VERSUS

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1. The State of Maharashtra.

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2. Ram s/o. Ashruba Gavhad Age: 31 yrs, Occ: Agri., R/o.Patoda, Post-Patoda,

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Tq.Mantha, Dist. Jalna. RESPONDENTS

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...

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Mr.S.S.Panale, Advocate for the applicants
Mrs.P.V.Diggikar, APP for the Respondent
No1./State

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...

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CORAM: S.S.SHINDE &

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K.K.SONAWANE,JJ.

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Reserved on : 20.02.2017
 Pronounced on : 23.02.2017

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JUDGMENT: (Per S.S.Shinde, J.):

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1]Heard the learned counsel appearing

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for the applicants. He submits that the

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463.2016 Cri.Appln.odt

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applicants are residing at Antarwala, Post
Kajala, Taluka and District Jalna. The
learned counsel appearing for the applicants
invites our attention to the copies of the
card issued to the applicants by the Election

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Commission of India and also copy of the
Aadhar card issued in favour of applicant no.

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1. It is submitted that son of applicant no.1
namely Ankush was married with Vandana,
sister of respondent no.2, in the year 2006.

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The couple is blessed with daughter Gauri 6
years old and son Gaurav 4 years old.

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2]It is submitted that son of

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applicant no.1 Ankush came to reside at

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Aurangabad and also purchased a plot and
constructed his own house at Aurangabad. It
is submitted that on 26th August, 2015, Ankush

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and Vandana were proceedings towards the
village Antarwala at that time at about 10.45
a.m. when Ankush stopped the vehicle on

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Aurangabad-Jalna Road for answering nature’s

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463.2016 Cri.Appln.odt

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call, Vandana was given dash by one truck and
in the said accident, she sustained grievous
injuries to her head and Vandana succumbed to

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the said injuries on 27.08.2015. It is
submitted that the applicants are nothing to
do with the accidental death of Vandana. The

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death of Vandana was accidental and not suicidal. The First Information Report itself does not disclose any material prima facie to

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meet the ingredients of the offence

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punishable under Section 306 of the Indian
Penal Code. There is no act or overt act or

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omission or any illegal act on the part of

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the present applicants, which has abetted the
suicide of Vandana. It is submitted that even

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if the allegations in the FIR are read in its

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entirety, there is no specific act attributed

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on the part of the applicants, which would

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amount to abetment as contemplated under

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Section 107 of the IPC. There is no

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instigation, conspiracy or intentional aid to

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463.2016 Cri.Appln.odt

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the commission of suicide by Vandana at the
instance of the applicants. The entire
documents placed on record will show that the
applicants were residing separately from
deceased Vandana, therefore, the applicants
cannot be accused for abetting the suicide or
causing ill-treatment of any kind to Vandana.
The applicants are falsely implicated in the
allegedcommissionofoffence.The
allegations are omnibus in nature, therefore
the FIR qua applicants deserves to be quashed
and set aside.

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3]On the other hand, the learned APP
appearing for the respondent–State relying
upon the investigation papers submits that,
during the course of investigation, the
Investigating Officer has recorded the
statements of various witnesses and they have
stated that along with other accused, the
applicants have also harassed and ill-treated
the sister of respondent no.2. There are

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463.2016 Cri.Appln.odt

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specific allegation even against the
applicants. Apart from Section 306 of the
IPC, even Section 498A is invoked. There is
sufficient material collected during the
course of investigation by the Investigating
Officer and the trial can proceed on the
basis of the said material.

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4]The learned counsel appearing for

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respondent no.2 submits that in fact sister
of respondent no.2 i.e. wife of Ankush, is

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murdered and is not the case of the
accidental death. He submits that it is
settled law that the allegations in the FIR

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will have to be taken as it is and can be

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tested only during trial, and therefore, when
there are specific allegation against even

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the applicants, that the applicants were

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suspecting chastity / character of the sister
of respondent no.2, and therefore, the
ingredients of Section 498A are clearly
attracted. Even there are allegations that

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463.2016 Cri.Appln.odt

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the applicants not only suspected her
character/chastity, however, abused her and
extended threats that they will kill her.
Therefore, he submits that, this Court may
not entertain the application for quashing of
the FIR.

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5]It is submitted that in the year
2015, the deceased Vandana discovered that

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her husband Ankush was having an extra
marital affair. He was addicted to liquor.

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When respondent no.2 visited Vandana in his
matrimonial home on 24th August, 2015, she
stated that applicant no.1 Kesharbai had

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instigated Ankush to beat Vandana by
revealing the occurrences prior to his coming
home. She further stated that applicant no.2

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had also instigated Ankush likewise and have

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also taken away the children in his room on

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the upper floor in order to facilitate Ankush

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to have his revenge against Vandana. On

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24.08.2015, Ankush had beaten her badly on

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463.2016 Cri.Appln.odt

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instigation of the applicants. It is
submitted that, applicants are managed to
produce certain documents to demonstrate that
they are resident of Antarwala, Taluka and
District Jalna. However, they are residing at
Bajrang Nagar, Chikalthana, Aurangabad.

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6]We have heard the learned counsel
appearing for the applicants, learned APP
appearing for the respondent – State and the
learned counsel appearing for respondent
no.2. With their able assistance, we have

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perused the grounds taken in the application,
annexures thereto, the contents of the FIR

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and the charge-sheet and its accompaniment

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made available for perusal by the learned
APP. Upon careful perusal of the statements
ofthewitnessesrecordedbythe

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Investigating Officer, there are allegations
against the present applicants, the

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ingredients of Section 498 of the IPC are
clearly attracted, the Investigating Officer

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463.2016 Cri.Appln.odt

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after full-fledged investigation, has filed
charge-sheet.

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7]In that view of the matter, in our
opinion, the Investigating Officer has
collected sufficient material during the
course of investigation. In this Application,
there is no challenge to the charge-sheet and
only the FIR is questioned by the applicants.
Be that as it may, in view of the exposition
of law by the Supreme Court in the case of
Bhaskar Lal Sharma and another Vs. Monica and

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others1 wherein in para 11 of the judgment it
is held that the facts, as alleged, in the
FIR will have to be proved which can be done

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only in the course of a regular trial. The
appreciation, in a summary manner, of the
averments made in the FIR would not be
permissible at the stage of quashing of FIR
and the facts stated will have to be accepted
as they appear on the very face thereof. In

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1 (2014) 3 SCC 383

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463.2016 Cri.Appln.odt

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that view of the matter, we are not inclined
to quash the First Information Report, hence
the Application stands rejected.

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8]However, we make it clear that in

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case the applicants wish to file application
for discharge before the concerned Court and

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if charge is already not framed, the
rejection of this application shall not
construed as an impediment to the applicants
to avail said remedy. However, we make it
clear that if applicants are desirous to file
application for discharge, they can avail the
said remedy by way of filing appropriate
application within three weeks from today. In
case such application is filed, the concerned
Court shall decide the same in accordance
with law on its own merits within 6 weeks
from filing such application.

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However, we make it clear that, in
case an appropriate application is not filed

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463.2016 Cri.Appln.odt

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within three weeks from today, after three weeks the concerned Court shall not entertain the application of the applicants praying therein for discharge. The observations made hereinabove are prima facie in nature.

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 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

Kesharbai Wd/O Sakharam Barbinde and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kesharbai Wd/O Sakharam Barbinde and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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