(1) CRI. WP. 889.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 889 OF 2009 Raju @ Rajendra S/o Kaduba Admane, Age: 36 years, Occu.: Business, R/o. Govardhan Residency, Vedantnagar, Railway Station Road, Aurangabad .. Petitioner (Orig. Accused no.3) VERSUS 1] The State of Maharashtra, [Copy to be served on Office of Public Prosecutor, High Court, Bench at Aurangabad] 2] Gangadhar S/o Patilba Dhurat, Age: 49 years, Occu.: Agri., At present R/o. Shillegaon, Tq. Gangapur, Dist. Aurangabad .. Respondents (R.No.2-Orig.Complainant) Mr. V.D. Hon, Advocate h/f. Mr.H.D. Deshmukh, Advocate for the petitioner Mr. N.H. Borade, APP. for the respondent-State Mr. N.D. Sonavane, Advocate for the respondent no.2 ... CORAM : A.V. NIRGUDE, J. DATED : 19TH MARCH, 2010 PER COURT:- 1] Heard. The learned Advocate appearing for the petitioner rightly pointed out that his client is wrongly implicated in this case because there is nothing on record to show his client’s presence at the scene of offence prior to the alleged incident (2) CRI. WP. 889.2009 of murder. I therefore, asked the learned APP to verify from record as to whether there is any statement of any witness who had seen the present petitioner coming to village Satara, which is at a distance of 10 km from Aurangabad city on or prior to the date of the incident. 2] Shri Borade learned APP verified the Police record and stated that there is no material on record to show that the petitioner came to village Satara just prior to the incident. There is no dispute about the fact that after the incident the petitioner was seen by all the witnesses at the time when the dead body was taken for cremation. The petitioner, therefore cannot be charged with murder. I am aware that the petitioner is charged under section 201 of the Indian Penal Code in another case, the incident of which occurred at the time of funeral. I am aware that the prosecution also placed reliance on the second incident that occurred during the night after the incident of murder. At that time, the petitioner and other family members including the accused in this case, tried to hurriedly dispose of the dead body of the deceased. When the Police learnt about it, they rushed at the burial site and tried to stop the funeral. At that time, the petitioner and others tried to physically prevent the Police from intervening in the process of funeral. However, the Police succeeded in (3) CRI. WP. 889.2009 stopping the funeral and they also succeeded in retrieving the dead body. After the post mortem examination, it was revealed that the deceased had died due to strangulation. As such, the persons belonging to the family of the accused, who tried to stop the Police from intervening in the funeral process are charged inter-alia for attempting to cause dis-appearance of the evidence [Section 201 of the Indian Penal Code]. In that case, [Crime no. 35 of 2009] the petitioner has not sought quashing of the FIR or the criminal case. 3] So, the present Writ Petition seeking quashing of the criminal case pursuant to crime no. 36 of 2009 deserves to be allowed. The Writ Petition is allowed. The prosecution of the petitioner in crime no. 36 of 2009 [Sessions Case no. 196 of 2009] stands quashed. Sd/- (A.V. NIRGUDE, J.) arp