1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.547 OF 2009 IN CRIMINAL REVISION APPLICATION (ST)NO.616 OF 2009 Fakruddin G. Patel & Anr. ...Applicants (Orig.Accused) Vs. The State of Maharashtra ...Respondent Mr.M.K.Kocharekar, Advocate for Applicants Mrs.A.A.Mane, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 1ST DECEMBER, 2009 P.C. 1.The accused in this application are the father-in-law and sister-in-law of one deceased Rizwana who is stated to have been set on fire in her paternal home on 10th November 1995. An F.I.R came to be filed initially against her husband as well as the applicants herein on 18th November 1995, 8 days after the incident. Thereafter a private complaint has been filed by the father of the deceased who was the complainant in the F.I.R on 3rd January 1996. In that private complaint he has stated that his F.I.R has been incorrectly recorded 2 making out a case of suicide and abetment of suicide by the police. I am told that 20 witnesses have been examined by the Magistrate in the private complaint. Process has been issued against the husband of the deceased only. That complaint makes out the case of an offence of murder against the husband of the deceased only. 2.In the police complaint which came to be prosecuted pursuant to the F.I.R dated 18th November 1995, charge has been sought to be made out not only against the husband of the deceased, but also her father-in-law and sister-in-law. The F.I.R itself which shows allegations against these applicants cannot be considered in view of the private complaint. 3.Both these cases were directed to be tried together since they arise out of the same incident by the Sessions Judge. However, that order has been set aside by this Court. The trials would now be conducted separately. The private complaint would be proceeded against the husband alone. In the police case the father-in-law and the sister-in-law of the deceased, the applicants herein have applied for discharge. That application has been rejected by the trial Court. 4.The prima facie case of the offence of suicide and 3 abetment made out by the police in this case is required to be seen also considering the private complaint filed by the father of the deceased in the learned Magistrate s Court. 5.The F.I.R in this case which makes a mention about the quarrel had by the applicants herein with the deceased and the consequent suicide of the deceased is not made out in the private complaint of the father filed about 2 months after the incident. The statement of a friend of the deceased one Shehnaz Abdul Rasheed Shaikh which shows frequent quarrels of the applicants with the deceased and the conduct of the father-in-law with the deceased does not find any place in the evidence of the said witness recorded as witness No.6 in the private complaint in the Magistrate s Court. The statement of the mother of the deceased recorded on 10th November 1995 shows an accidental death. Her statement recorded on 18th November 1995 shows a oral dying declaration made by the deceased to her implicating the applicants herein. However, her evidence recorded by the Magistrate as P.W.4 in the case before the Magistrate shows allegations made with regard to the incident only against accused No.1. 6.These contradictory statements must be considered along side the fact that the incident did not take place in 4 the matrimonial home where both resided, but in her paternal home where she had gone and where accused No.1 is stated to have come on the date of the incident. The criminal prosecution cannot be allowed to proceed, if it is seen to be lacking in bonafides. The case made out by the complainant is prima facie seen to be lacking in bonafides upon such contradictory statements made in the 2 complaints by his own witnesses and relatives. Since his case is of murder under Section 302 I.P.C against the husband of the deceased and does not make out a case of abetment of suicide against these applicants, these applicants deserve to be discharged from the case. Ofcourse the case against accused No.1, the husband of the deceased shall have to proceed in respect of the charge of abetment of suicide against him also. 7.The impugned order of the learned 4th Ad-hoc Additional Sessions Judge, Dindoshi, Borivali Division, Mumbai dated 16th June 2009 is set aside. The applicants in that application are discharged. However, the case shall proceed against accused No.1. 8.The police case shall be taken up for hearing after the private complaint filed by the father of the deceased is disposed off. (SMT. ROSHAN DALVI, J.)