1 1409revn77.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL REVISION APPLICATION NO. 77 OF 2011. Durga Deorao Khandare of Daryapur. ... APPLICANT VERSUS State of Maharashtra. ... RESPONDENT .... Shri Y.B. Mandpe, Advocate for the applicant. Shri M.J. Khan, Additional Public Prosecutor for the respondent/State. .... CORAM : PRASANNA B.VARALE, J. DATED : 14TH SEPTEMBER, 2011. P.C. By way of present application, the applicant is challenging the order dated 11.03.2011 passed by the learned Additional Sessions Judge-2, Achalpur thereby rejecting the application for seeking discharge. 2. Heard Shri Y.B. Mandpe, the learned Counsel appearing on behalf of the applicant and Shri M.J. Khan, the learned Additional Public Prosecutor appearing on behalf of the respondent/State. 3. The brief facts giving rise to filing of the present revision application can be summarized as under :- 2 1409revn77.11 One Sunil Krishnarao Kalmate lodged a report to Police Station, Pathrot in respect of death of his brother Mahendra Krishnarao Kalmate. It was stated in the report that Mahendra was working as Health Attendant/Health Worker at Primary Health Center, Yesuni. Deceased Mahendra had developed an intimacy with applicant Durga Khandare and this intimacy further resulted into illicit relations between Mahendra and applicant-Durga. On 09.01.2010 at about 08:00 a.m., when Sunil Kalmate was at his residence, he received a phone call from applicant Durga informing him that Mahendra had consumed poison and he was serious. It was further informed by applicant Durga that Mahendra had been admitted in the Civil Hospital, Anjangaon. On receiving the information, Sunil immediately rushed to the hospital with his friends and found that his brother Mahendra was lying on the bed. On euqniry with the hospital staff, it was informed to Sunil that one Pradip Attal and applicant Durga admitted his brother Mahendra in a dead condition. It was further submitted in the report that the applicant was continuously torturing and mentally harassing Mahendra i.e. brother of informant Sunil Kalmate and deceased Mahendra was under mental depression and disturbed state. Sunil Kalmate, by the report, requested the authorities to take necessary steps. The investigating agency was set in motion and on collection of necessary evidence, the charge sheet came to be filed against the applicant. The applicant submitted an application before the learned Additional Sessions Judge, Paratwada/Achalpur. The charge sheet is filed 3 1409revn77.11 and the criminal case is accordingly numbered as Sessions Trial No. 80/2010 and the same is pending before the Sessions Court, Paratwada/Achalpur. The applicant submitted an application before the learned Sessions Court under Section 227 read with Section 239 of Criminal Procedure Code seeking discharge. The application was opposed by the prosecution by filing say through learned APP on behalf of the prosecution. The learned Sessions Judge, by order dated 11.03.2011, dismissed the application. Being aggrieved by the order dated 11.03.2011 passed by the learned Additional Sessions Judge-2, Achalpur, the applicant is before this Court by way of present revision application. 4. Shri Y.B. Mandpe, the learned Counsel for the applicant vehemently submits that the criminal proceedings initiated against the applicant which resulted into filing of charge sheet, is an abuse of process of law. He further submits that there is no iota of any evidence against the applicant. He further submits that only on suspicion and with false and baseless allegations, the applicant is tried to be involved in a serious offence. The learned Counsel further submits that the perusal of the material collected by the investigating agency falls too short to attract any criminal liability against the applicant muchless an offence under Section 306 of the Indian Penal Code. Shri Mandpe further submits that the prosecution agency is not even certain about the cause of death of the deceased. On this submission, the learned Counsel for the applicant prays 4 1409revn77.11 for allowing the application. 5. Shri M.J. Khan, the learned Additional Public Prosecutor for the respondent/State strongly opposes the application and supports the order passed by the learned Additional Sessions Judge impugned in the instant revision application. 6. The copy of charge sheet is placed on record. With the assistance of the learned Counsel appearing on behalf of the respective parties, I have gone through the material placed on record. The perusal of the report lodged by Sunil Kalmate, brother of deceased Mahendra reveals that the applicant and his brother Mahendra were indulged in illicit relations for nearly seven to eight years prior to lodging of the report. His report reveals that on 09.01.2010, Sunil received a phone call from the applicant informing that his brother was in serious condition due to consumption of poison and was admitted in Civil Hospital at Anjangaon. The report further reveals that Sunil immediately rushed to the hospital along with his friends and on enquiry he was informed that his brother was admitted in a dead condition. The investigating agency in the process of investigation visited the spot of occurrence for drawing panchnama. The perusal of the spot panchnama reveals that the residential quarter of the applicant wherein Mahendra breathed his last was locked on the date when the investigating agency along with panchas approached the 5 1409revn77.11 quarter. It was found that the applicant was not available (alleged to be absconded) from 09.01.2010 and as such the investigating agency left with no choice but to break open the door of the quarter and conducted the spot panchnama. It is not necessary to give the details of the spot panchnama at this stage for consideration of the present application. 7. Perusal of the statements recorded by the investigating agency of the persons namely, Ujwala, wife of deceased Mahendra, Krishnarao, father of the deceased, Dr. Sanjay Tatte, cousin brother of the deceased, friends of deceased, namely, Ravindra, Umesh, Shivshankar and Dilip Lande show that all these persons in chorus have stated about the illicit relations of the applicant and deceased Mahendra. Though it is submitted by the learned Counsel for the applicant that merely having illicit relations of the applicant with the deceased, is no reason to say that there is material against the applicant, yet I am unable to accept the submission of the learned Counsel for the applicant for the reason that the material discloses more than mere allegation against the applicant of illicit relations. The statement of Ujwala, wife of deceased Mahendra, in clear terms, reveals that the applicant used to call the deceased and his wife Ujwala. The statement of Ujwala further reveals that the applicant was insisting upon Ujwala to leave Mahendra. Ujwala used to reply the applicant saying that as Ujwala is legally wedded wife of Mahendra, there is no question of her leaving Mahendra. It is further revealed from the statement of Ujwala that 6 1409revn77.11 deceased Mahendra used to be under mental pressure and on asking by her, deceased Mahendra told her that the applicant was trying to defame him and he was under pressure because of the harassment of the applicant. The statement of Ujwala further reveals that the applicant was instrumental in respect of news item against deceased Mahendra. Similar version is expressed by the other family members, namely, Krishnarao, father of the deceased, Vilas, brother of the deceased and Dr. Sanjay Tatte, cousin brother of deceased. Apart from these relatives, there are also statements recorded by the investigating agency of the other witnesses i.e. friends of deceased, namely, Ravindra Shelke, Umesh Lande, Shivshankar Harne and Dilip Lande. From the statements of Ravindra, Sunil, Dr. Sanjay and Vilas, it is further revealed that a news item was published against deceased Mahendra. This news item also caused mental depression to deceased Mahendra. The statements reveal that it is the impression of these persons that the news item was published at the instance of the applicant and because of this news item, the applicant was under tremendous mental pressure and was consuming excessive liquor. The statements of the friends of deceased Mahendra, namely, Umesh, Shivshankar and Dilip reveal that deceased Mahendra used to tell them about his illicit relations with the applicant and her insistence of asking the deceased to reside with her. The applicant used to pick up quarrel on this ground and the deceased was fed up with the quarrel of the applicant, continuous insistence and mental harassment by the applicant. Though 7 1409revn77.11 the learned Counsel for the applicant, by referring to the postmortem report, submits that the medical authorities have not arrived at any definite conclusion about the cause of death of deceased, the opinion about the probable cause of death is, “the cause of death is waited however viscera sent for chemical examination”. Merely because the medical officer was unable to give any opinion and the opinion was subject to the viscera report, cannot be the reason to say that there is no material against the applicant. 8. The application filed by the applicant is under Section 397 of the Code of Criminal Procedure seeking discharge and challenging the order passed by the learned Sessions Judge by exercising the powers of revision. The applicant has failed to satisfy this Court that the order passed by the learned Sessions Judge is either erroneous or improper or without considering the material on record. 9. On the backdrop of this settled position of law, the perusal of the material collected by the investigating agency is more than sufficient to show that there is prima facie material against the applicant. The learned Sessions Judge, on considering the material as well as applying the law reported in the case of P. Vijayan .v. State of Kerala and another (reported in 2010 Cri.L.J., 1427) found that there is sufficient material on record to frame a charge against the accused (applicant herein) for the 8 1409revn77.11 offence punishable under Section 306 of the Indian Penal Code. The learned Sessions Judge was also justified in observing that the evaluation of the evidence can be done at the stage of trial. On the background of the material collected by the investigating agency, in my opinion, the order passed by the learned Sessions Judge is just and proper. No fault can be found with the order passed by the learned Sessions Judge. Hence, in my opinion, this is not a case which requires interference at the hands of this Court. The applicant being devoid of merits, deserves to be rejected. 10. In the result, the criminal revision application is rejected. JUDGE *rrg.