3103cwp606.10.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL WRIT PETITION NO.606 OF 2010. Diwakar Vyankatrao Yede ..vs.. State of Mah. Through P.S.O.Durgapur, P.S.Chandrapur and ors. ------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------------- Mr.M.B.Naidu, Adv. for the petitioner. Mr.T.A.Mirza, APP for the respondents. CORAM : MRS.V.K.TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATED : 31ST MARCH, 2011. 1. Heard the learned counsel for the petitioner and the learned APP for the respondents. 2. The case of the petitioner is that his son Mangesh was studying in the same college in which accused Vaibhav Tijare was studying. There was some rivalry between two boys due to which Vaibhav had a grudge against Mangesh. On account of this rivalry, on 17/9/2010, Vaibhav took Mangesh to his house and fired one bullet on Mangesh with the service pistol of his father – Khushal Tijare. Thereafter, with the help of two other accused i.e. Vishal Matte and Akash Gajralwar, accused Vaibhav took the body of Mangesh and threw it 3103cwp606.10.odt 2/5 behind the traffic post Chandrapur. Hence, FIR came to be registered at Police Station, Durgapur under Section 302, 304-A and 201 of the Indian Penal Code. 3. The petitioner is seeking transfer of the investigation to the State CID, as, according to the petitioner, the investigation has not been carried out in a fair and proper manner. 4. In the present case, the investigation is over and the charge-sheet has been filed. The papers relating to investigation inter alia show that - i) All the three accused have been arrested. ii) Incident had taken place in the house of accused Vaibhav hence the house was inspected, some blood stains were found in the corner of one room and one glass of the ventilator was found to have bullet marks hence, photographs were taken out and necessary panchanamas were prepared. iii) The school bag of Mangesh containing books, mobile phone and other articles came to be seized at the instance of accused Vaibhav. iv) The detail of Mobile phone calls made by deceased Mangesh, accused Vaibhav, Akash Gijralwar, Vishal Matte and others have also been collected by the police. v) During investigation it was revealed that accused Vaibhav wiped 3103cwp606.10.odt 3/5 out the blood stains with a piece of cloth, said cloth has been seized. vi) During investigation it was revealed that deceased, accused Vaibhav and his friends were taking tea at Madan Tea Centre on 16/9/2010 at about 3.00 p.m. The statement of the owner of Madan Tea Centre and other persons present at the stall have been recorded. vii) Witnesses had stated that the accused Vaibhav had taken deceased on a motor-cycle. Said motor cycle has been seized. viii) Blood samples of all the accused were collected. ix) Statements of other persons have been recorded which show that Vaibhav and Mangesh had some differences. x) The pistol used in the crime was seized. xi) The ballistic expert report shows that the seized pistol was used in the crime. xii) During investigation it was found that pistol from which the bullet was fired belonged to API Khushal Tijare i.e. father of accused Vaibhav. He was called upon to deposit the said service pistol. At the time of depositing of said pistol along with bullet, it was found that API Tijare had been given 30 bullets but while depositing the same he had deposited only 29 bullets. Hence, explanation was called from him about one round 3103cwp606.10.odt 4/5 being short. xiii) The investigation reveals that after accused Vaibhav fired the bullet, he called his friend Vishal Matte and Akash Gajralwar to his house and these two accused helped Vaibhav to dispose of the body, hence both these persons were also arrested. 5. The learned counsel for the petitioner submitted that when the expert was called to examine the pistol, no finger print was found on it. He submitted that, however, no investigation was carried out to find out who destroyed the finger print on the said pistol. Hence, on this ground and on the ground that the investigating agency have not seized the bullet as well as cartridge, transfer of investigation is sought. The investigation in this case shows that the accused had thrown the bullet near Palace Hotel near Bus-stand at Chandrapur. The police have made sincere and genuine efforts to trace the bullet and cartridge, however, they could not trace the same. As the bullet and cartridge were thrown on the road side, transferring the investigation to trace the same would not be of any use. As far as destruction of finger prints is concerned, charge-sheet has been filed under Section 201 of IPC which deals with destroying evidence. 6. The learned counsel for the petitioner further submitted that accused Vaibhav has used the service pistol of his father therefore, his father API Khushal Tijare should be made an accused for having committed an offence under Section 304-A of the Indian Penal Code. He contended that API Tijare was bound to keep 3103cwp606.10.odt 5/5 service pistol in safe custody which was not done by him, due to which this offence has taken place. As far as this aspect is concerned, we find that Departmental Enquiry (DE) is being conducted against API Tijare and during the preliminary enquiry in the D.E., he has been found guilty of negligence. The Additional Superintendent of Police is conducting the D.E. As far as charging API Tijare under Section 304-A of IPC is concerned, we find that the facts of this case are such that the act of API Tijare would be said to be too remote to be connected with this crime. 7. We find that the investigation has been diligently carried out in this case and the investigation has proceeded in the right direction. It is a fair and proper investigation. Hence, no case is made out for interference. The petition is rejected. JUDGE JUDGE chute