No Relief of Further Enquiry Due to Lack of Evidence: Bombay High Court

 on 31 03 2021 on 01 04 CrWP 77 2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 77 OF 2020Rajendra @ Raju s o. Laxman Chandane Age: 30 years Occu. Painting R o. Wakadi Tq. Jamner Dist. Jalgaon. … PetitionerVersus1)The State of Maharashtra Through: Home Secretary Mantralaya Mumbai Maharashtra State.2)Director General of PoliceMaharashtra State.3)Superintendent of Police Jalgaon.4)Sub Divisional Police Officer Pachora Pachora Division Dist. Jalgaon.5)Police Inspector of PahurPolice Station Tq. Jamner Dist. Jalgaon.6)Chandrashekhar s o Padmakar WaniAge : 40 years Occu. Agri.R o. Wakod Tq. Jamner Dist. Jalgaon.7)Vinod s o Suresh Deshmukh Age : 28 Years Occu. Agri.R o Wakod Tq. Jamner Dist. Jalgaon.8)Namdar s o Gulab TadviAge : 35 Years Occu. Agri.R o Wakod Tq. Jamner Dist. Jalgaon.…Respondents 1 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odt…Advocate for Petitioner : Mr. A. L. KanadeAPP for Respondent Nos. 1 to 5 : Mr. S. G. SangleAdvocate for Respondent No.6 : Mr. P. P. More... CORAM : RAVINDRA V. GHUGE AND B. U. DEBADWAR JJ. RESERVED ON : 18th MARCH 2021 PRONOUNCED ON : 31st MARCH 2021JUDGMENT : 1.By this petition the petitioner has claimed followingreliefs : “B.By issuing appropriate writ order or directions torespondent No. 1 to 3 to re investigate the CrimeNo.74 2019registered at Pahur Police Station on23.03.2019 for the offences punishable U s. 363 364 120 B 341 of I.P.C. r w. Sec. 3(2)(v) of S.C. &S.T. Prevention of Atrocities Act and subsequentlyadded Sec.302 201 of I.P.C. in Charge sheet bearingNo. 19 2019 dated 31.05.2019 filed before Districtand Sessions Judge Jalgaon in resulted into SpecialAtrocity Case No.06 2019 through the CriminalInvestigation Departmentor any other SpecialInvestigation Agency except District Local PoliceMachinery against present respondent No. 6 to 8 whoare the original accused No.1 3 & 4 and also seekingdirection to add the names of respondent No. 6 to 8in the present crime and adding their names maykindly be filed supplementary charge sheet.C.By issuing appropriate writ order or directions torespondents No. 1 to 5 to collect CDR record ofpresent respondent No. 6 to 8 from the date of01.02.2018 to 01.04.2019 in respect of Mobile SimNo. 9112746544 9156906335 and 9860888863 in 2 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtthe connection of present crime as presentrespondent no. 6 i.e. original accused no.1 namelyChandrashekhar Padmakar Wani in several occasioncontacted with accused namely Mahendra ShamlalRajput who committed the murder of deceased VinodChandane with other co accused.D.The order dated 15.6.2019 passed by AdditionalSessions Judge Jalgaon whereby accepted the reportu s. 169 of Cr.P.C. filed by Sub Divisional PoliceOfficer Pachora Pachora Division in the connection ofcrime No. 174 2019 registered at Pahur PoliceStation Tq. Jamner Dist. Jalgaon and therebyreleased present respondent No. 6 to 8 from the saidcrime may kindly be quashed and set aside.”2.Heard Mr. A. L. Kanade learned advocate for petitioner Mr. S. G. Sangle learned APP for respondent Nos. 1 to 5 and Mr. P.P. More learned advocate for respondent No.6. Nobody appearedfor respondent Nos. 7 and 8 despite service of notice.3.Facts of the criminal case which gave rise to this writpetition in nutshell are as under :a)The deceased Vinod Chandane was the elder brother ofpetitioner Rajendra Chandane resident of village Wakadi Tq.Jamner Dist. Jaglaon. They were the members of Matangcommunity which falls in the scheduled castes category. VinodChandane had contested the Gram Panchayat Election as anindependent candidate and elected as a Member of Gram PanchayatWakadi. He used to fight for the protection of rights of poor andneedy persons of village Wakadi with Government Machinery at 3 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtlocal level and if necessary to the State level. b)Accused Sumit Kishor Shastriis also resident ofvillage Wakadi. c)In the year 2018 some boys belonging to Matangcommunity had been to the field standing in the name of mother ofaccused Sumit Shastri for swimming in the well situated in the saidfield. Being annoyed by the same accused Sumit Shastri alongwith his cousin Ishwar Joshi and three more persons resident ofvillage Wakadi caught hold of those boys belonging to Matangcommunity in field itself disgraced and insulted them by movingthem in the village in a naked condition after beating themmercilessly.d)Deceased Vinod Chandane took the cognizance of thatincident and made publicity of the same upto national level. Takingcognizance of that incident brought to light by deceased VinodChandane crime was registered and after trial Ishwar Joshi cousinbrother of Sumit Shastri was arrested and prosecuted.e)Being annoyed by the aforesaid act of Vinod Chandane Sumit Shastri and other prominent persons of the village havingpolitical background decided to take revenge and teach a lesson toVinod Chandane when they would get opportunity. f)On 19 03 2019 at about 09:30 a.m. Vinod Chandanehad left his house with motorcycle. Meanwhile one Ajabsing who 4 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtwanted to go to his field requested Vinod Chandane for lift.Accordingly Vinod Chandane gave lift and carried him up to his fieldand proceeded towards dam.g)On that day at about 02:00 p.m. one Atul Mahajan metAjabsing and informed that he noticed not only motorcycle of theVinod Chandane but also foot wears i.e. chappals and somepapers lying near the dam. Thus Ajabsing was the person whohad lastly seen Vinod Chandane alive. h)On 19 03 2019 itself Vijay Laxman Chandane youngerbrother of Vinod Chandane lodged report to Pahur police stationabout missing of his elder brother Vinod Chandane after visitingand verifying the place near the wall of Wakadi dam wheremotorcycle chappals Adhar Card cell phone and other articlesbelonging to Vinod Chandane were found lying.i)On the basis of the said report missing caseNo.11 2019 was registered at Pahur Police Station at 11:25 p.m.j)After lodging the missing report on 23 03 2019 Rajendra Chandane lodged FIR bearing No.74 2019 at Pahur PoliceStation inter alia narrating many instances leading to suspicionagainst Chandrashekhar Wani and others.k)On the basis of the said report Crime bearing No.74 2019 for the offences punishable under Sections 363 364 120 B 341 of I.P.C. and Section 3(2)(v) of the Scheduled Castes and 5 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtScheduled TribesAct 1989 came to beregistered against original accused Nos. 1 to 4 viz. ChandrashekharWani Mahendra Rajput Namdar Tadvi and Vinod Deshmukh atPahur Police Station.l)After lodging the aforesaid FIR dead body of VinodChandane was found with multiple injuries in the well situatedwithin the limits of village Mohadi.m)During the course of investigation it was revealed thataccused No.2 Mahendra Rajput accused No.5 Pradip @ PintyaPardeshi accused No.6 Yogesh Sonar and accused No.7 SumitShastriout of the rivalry for various reasons referredabove hatched conspiracy and committed murder of VinodChandane by assaulting him with iron rod on his head and thrownhis dead body in the well situated at Wakadi dam.n)This was done by accused No.2 Mahendra accused No.5Pradip and accused No.6 Yogesh at the instance of accused No.7Sumit. o)According to the prosecution accused No.7 Sumit wasthe master mind. He had given the contract of murder of Vinod toaforesaid three accused and in execution of the said contract Vinodwas eliminated by accused No.2 Mahendra accused No.5 Pradipand accused No.6 Yogesh. Therefore they have been charge sheeted for the offences punishable under Sections 302 201 120 6 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtB 341 363 364 of I.P.C. and Section 3(2)(v) of the ScheduledCastes and Scheduled TribesAct 1989and by separate report under Section 169 of Cr.P.C. claimeddischarge of accused No.1 Chandrashekhar Wani accused No.3Vinod Deshmukh and accused No.4 Namdar Tadvi. p)Aforesaid charge sheet and report under Section 169 ofCr.P.C. came to be submitted before the Special Court Jalgaon on31 05 2019.q)In pursuance of the notice in respect of report underSection 169 of Cr.P.C. first informant Rajendra Chandane appearedbefore Special Court and submitted his protest petition Exhibit 24on 14 06 2019 inter alia contending that he had grave suspicionagainst the aforesaid three accused against whom I.O. had claimeddischarge alleging that after investigation no evidence to connectthem with the incident was found. According to RajendraChandane his brother had made various complaints to the variousauthorities against Chandrashekhar Wani in respect ofmisappropriation of funds of Gram Panchayat committed byChandrashekhar Wani by playing fraud. r)That being the reason involvement of ChandrashekharWani Vinod Deshmukh and Namdar Tadvi in the murder of hisbrother Vinod Chandane is sure and certain. s)They are the persons who along with other four 7 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtaccused hatched the conspiracy to eliminate Vinod Chandane andin execution of that plan they ultimately eliminated VinodChandane. t)Chandrashekhar Wani was the main person of theconspiracy under which brutal murder of Vinod was committed.Therefore they are required to be tried along with four accused against whom charge sheet is filed.u)Having heard learned advocates for both the sides learnedJudge of Special Court accepted the report under Section 169 ofCr.P.C. and discharged aforesaid three accused viz. ChandrashekharWani Vinod Deshmukh and Namdar Tadvi holding that afterconducting thorough investigation no incriminating material wasfound against them. In the FIR lodged by Rajendra Chandane onlysuspicion was raised against the aforesaid three accused. Nothingwas placed before I.O. to substantiate the said suspicion.Moreover after investigation it was found that another fouraccusedhave committed themurder of Vinod after hatching conspiracy. Therefore protestpetition is liable to be discarded. v)It is pertinent to note that after about seven months ofacceptance of report under Section 169 of Cr.P.C. RajendraChandane first informant of the case has approached this Courtwith present writ petition claiming various reliefs including relief of 8 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtquashing of the order dated 15 06 2019 passed by AdditionalSessions Judge Jaglaon.4.While taking us through the paper book annexed to thepetition Mr. Kanade vehemently argued that Chandrashekhar Waniis a rich person having strong political background. He hadindulged in misappropriation of funds allocated to the GramPanchayat for disbursing the same to the needy persons undervarious schemes sponsored by the Government. His brother VinodChandane was efficient and loyal member of Gram Panchayat. Hewas deadly against corruption and misappropriation of Governmentmoney. Number of times he had exposed Chandrashekhar Wani.He had made complaints against Chandrashekhar Wani to variousauthorities for the act of his indulging in fraudulentlymisappropriating funds of the Gram Panchayat and thereby causingharm to the downtrodden people for betterment of whom fundswere allotted by the Government. Therefore Chandrashekhar Wanihad grudge against his brother Vinod Chandane. Many timesChandrashekhar had given threats of elimination to his brotherVinod Chandane. This being the motive which is very materialaspect involvement of three accused viz. Chandrashekhar Wani Vinod Deshmukh and Namdar Tadvi in the incident of abductionand murder of his brother Vinod Chandane is sure and certain. 9 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odt5.According to Mr. Kanade investigating officer failed toinvestigate the matter in the light of aforesaid motive. He had nottaken efforts to collect evidence in respect of misappropriation offunds of Gram Panchayat committed by Chandrashekhar Wani.Having regard to the totality of the allegations made in the missingreport and FIR investigating officer ought to have seized cellphones of all the aforesaid three accused and then collect CDR andSDR reports from concerned cellular companies and verify as towhether they were parties to the conspiracy under which VinodChandane was brutally killed. Without collecting appropriatedocumentary evidence and other evidence I.O. has submitted falsereport of discharge and learned Special Court has wrongly acceptedthe same without considering the protest petition submitted byRajendra Chandane. Therefore it is just and necessary to set asidethe order dated 15 06 2019 passed by the Special Court Jalgaon by which respondent Nos. 6 to 8 who are the original accused Nos.1 3 and 4 viz. Chandrashekhar Wani Vinod Deshmukh and NamdarTadvi have been discharged by accepting report under Section 169of Cr.P.C. and direct respondent Nos. 1 to 5 to re investigate thematter collect the additional evidence in the light of avermentsmade in the missing report and FIR including CDR and SDR reportsof cell phones of aforesaid three accused and file supplementary 10 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtcharge sheet against the said accused.6.Per contra Mr. P. P. More learned advocaterepresenting respondent No.6 strenuously argued that the petitionis baseless and misconceived. I.O. has investigated the matterthoroughly having regard to the allegations made in missing reportand FIR. After investigation no prima facie evidence showinginvolvement of respondent Nos. 6 to 8 found in the crime.Therefore he had no other option than to submit the report underSection 169 of Cr.P.C. against them.7.Rajendra Chandane first informant had not submittedany evidence to substantiate his suspicion. During the course ofinvestigation number of witnesses came to be examined butnobody made any kind of incriminating statement againstrespondent Nos. 6 to 8. In the absence of prima facie evidence only on the basis of baseless suspicion raised in the FIR respondentNos. 6 to 8 cannot be dragged to face the trial. The I.O. had noreason to act hand in glove with respondent Nos. 6 to 8. Had thepolice hand in glove with respondent Nos. 6 to 8 they would nothave arrested respondent Nos. 6 to 8 and sought their policecustody. In spite of doing in depth investigation nothing was foundagainst them. Now case is reached to the stage of framing charge.After commencement of trial if any incriminating evidence comes 11 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odton record against respondent Nos. 6 to 8 or in the meantime I.O.comes across any cogent evidence then respondent Nos. 6 to 8 canbe again prosecuted by filing supplementary charge sheet but atthis juncture only on the basis of vague suspicion raised byRajendra Chandane none of the reliefs as prayed by him can begranted. Therefore writ petition is liable to be dismissed.8.Mr. Sangle learned APP adopted aforesaid argumentsadvanced by Mr. More and additionally argued that cell phones ofaccused Nos. 2 5 6 and 7 were seized CDR and SDR reports ofthe same were collected from cellular companies of those cellphones and after cross verifying the said CDR and SDR reports involvement of those four accused were found. However noinvolvement of respondent Nos. 6 to 8 was found. Therefore thereis no substance in saying that I.O. did not investigate the matterproperly in respect of respondent Nos. 6 to 8.9.In the light of aforesaid submissions we have carefullygone through the record in it’s entirety. It is pertinent to note thatthe petitioner is claiming prosecution of respondent Nos. 6 to 8 only on the basis of suspicion. In the absence of prima facieevidence only on the basis of allegations made in the missingreport and the FIR that deceased Vinod Chandane was exposingChandrashekhar Wani by way of making various complaints to 12 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtvarious authorities alleging that he had misappropriated fundsallocated to the Gram Panchayat for disbursement of the same toneedy persons under various Government schemes inferencecannot be drawn that respondent Nos. 6 to 8 were also party to theconspiracy hatched for commission of murder of Vinod Chandane.10.It is a matter of record that during course ofinvestigation neither Rajendra Chandane had submitted anydocumentary evidence nor I.O. has come across cogent evidence on the basis of which it can be gathered that respondent Nos. 6 to 8were also parties to the conspiracy under which murder of Vinodwas committed.11.When there is no evidence showing that respondentsNo. 6 to 8 were parties to the conspiracy hatched for commission ofcrime i.e. murder of Vinod Chandane report under Section 169 ofCr.P.C. submitted by the I.O. vis a vis order passed by the learnedSpecial Court accepting the said report cannot be said to beincorrect.12.Having regard to the date of submission of report underSection 169 of Cr.P.C. date of the incident date of arrest ofrespondent Nos. 6 to 8 and the date of filing of present writpetition as on today even if by accepting allegations made in the 13 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtFIR directions are given for obtaining CDR and SDR report from theconcerned cellular companies of cell phones of respondent Nos. 6 to8 which were seized from them immediately after their arrest thenalso no purpose would be served as after one year call details ofevery cell phone gets deleted from the data storage of server ofconcerned cellular company. From this angle also relief pertainingto giving direction to respondent Nos. 1 to 5 as prayed in prayerclause ‘C’ of the petition becomes redundant.13.Since the averments made in the writ petition arevague as to the lapses in the investigation relief of directingrespondent Nos. 1 to 5 for conducting further investigation cannotbe granted. Had the petitioner pinpointed particular aspect of thecase left uninvestigated then further investigation in respect of thataspect could have been directed. Instead of pinpointing what is leftto be investigated petitioner went on harping on previous enmityand insisting for re joining respondent Nos. 6 to 8 in the criminalcase only on the basis of the same when there is no evidence oftheir participation in the conspiracy hatched by the rest of theaccused who have been charge sheeted.14.Record reveals that after receiving the complaint madeby deceased Vinod Chandane in charge officer of Pahur PoliceStation had summoned him so as to verify the contents of the 14 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtcomplaint and proceed further. But in spite of calling him time andagain deceased Vinod did not approach Pahur Police Station inconnection with the complaint he had made against accusedChandrashekhar Wani. This conduct of the deceased cannot be lostsight of.15.On the basis of CDR and SDR reports nexus of accusedNos. 2 5 6 and 7 with the homicidal death of Vinod Chandaneestablished and hence they have been rightly charge sheeted.CDR and SDR reports do not reveal about calling by respondentNos. 6 to 8 to any of the charge sheeted accused or receiving callsfrom them in relevant period. So also nobody from the witnessesspoke that they saw respondent Nos. 6 to 8 in the company ofdeceased Vinod Chandane prior to his disappearance. Therefore from any angle discharge of respondent Nos. 6 to 8 cannot said tobe incorrect.16.It is pertinent to note that I.O. gets every right to filesupplementary charge sheet against respondent Nos. 6 to 8 ifsome evidence establishing their involvement in the crime is found.Therefore if the I.O. comes across such evidence or during thecourse of evidence something comes on record prima facieestablishing involvement of respondent Nos. 6 to 8 in the incident then they can very well be directed to face the trial by invoking 15 of 16 on 31 03 2021 on 01 04 CrWP 77 2020.odtpowers under Section 319 of Cr.P.C. But in any case at thisjuncture either relief of re investigation or giving direction to policefor calling CDR and SDR reports of cell phones of respondent Nos. 6to 8 and verifying the same or quashing the order accepting thereport under Section 169 of Cr.P.C. passed by the Special Court Jalgaon can not be granted.17.In view of the above writ petition being devoid ofmerits is dismissed. (RAVINDRA V. GHUGE J.)SVH 16 of 16 

Summary: The allegation made in the writ petition is vague and ambiguous as to the lapses in the investigation. If the petitioner had pointed out something relevant to the case which can be investigated instead of pinpointing some old enmity between the deceased and respondent. This honourable judgement was passed by In the High Court of Judicature at Bombay Bench at Aurangabad in the case of Rajendra @ Raju s/o. Laxman Chandane vs the State of Maharashtra and Others [Criminal Writ Petition NO. 77 OF 2020] by the Hon’ble Ravindra v. Ghuge and B. U. Debadwar. Some boys belonging to Matang community went swimming near the mother of accused Sumit shastri, being annoyed by the kids they ridiculed, insulted after beating them mercilessly. Deceased Vinod Chandane took cognizance of that incident and made publicity of the same up to the national level. Taking cognizance of that incident, brought to light by deceased Vinod Chandane, crime was registered and after trial, Ishwar Joshi, cousin brother of Sumit Shastri was arrested and prosecuted. On 19-03-2019 itself, Vijay Laxman Chandane, younger brother of Vinod Chandane, lodged a report to Pahur police station about the missing of his elder brother Vinod Chandane. After lodging the missing report, Rajendra Chandane lodged FIR at Pahur Police Station inter alia narrating many instances leading to suspicion against Chandrashekhar Wani and others. On the basis of the said report, for the offences punishable under Sections 363, 364, 120- B, 341 of I.P.C. and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 came to be registered against original accused Nos. 1 to 4 viz. Chandrashekhar Wani, Mahendra Rajput, Namdar Tadvi and Vinod Deshmukh, at Pahur Police Station. Following this, his dead body was found. The court was of the view that “In the absence of prima facie evidence, only on the basis of allegations made in the missing report and the FIR that deceased Vinod Chandane was exposing Chandrashekhar Wani by way of making various complaints to various authorities alleging that he had misappropriated funds allocated to the Gram Panchayat for disbursement of the same to needy persons under various Government schemes, inference cannot be drawn that respondent Nos. 6 to 8 were also party to the conspiracy hatched for the commission of murder of Vinod Chandane. But It is pertinent to note that I.O. gets every right to file a supplementary charge sheet against respondent Nos. 6 to 8, if some evidence establishing their involvement in the crime is found then they can very well be directed to face the trial, by invoking 15 of 16 powers under Section 319 of Cr.P.C.”