appln-1702-2023 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION 1702 OF 2023 1. Nilesh s/o Sudhakar Malve ...Applicant VERSUS 1. The State of Maharashtra 2. Kiran s/o Arjunrao Udawant ...Respondents … Mr. Sachin S. Panale for the Applicant. Mr. A. M. Phule, APP for Respondent/State. ... CORAM : SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATED : 13th FEBRUARY 2025 O R D E R (Per Sanjay A. Deshmukh J.) :- 1. This is an application for quashment of the First Information Report (‘FIR’) vide Crime No.303 of 2023 registered at Pathardi Police Station, Dist. Ahmednagar, for the offences punishable under Section 306 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’). 2. Learned Advocate for the applicant pointed out that the report dated 26.03.2023 lodged by respondent No.2-informant alleging that his brother Nitin was harassed by the applicant and other accused on account of recovery of Rs. 2 lakhs of the gold ornaments. 2025:BHC-AUG:5582-DB appln-1702-2023 -2- 3. Informant averred in the report that informant is running the gold shop at Gevrai District Beed. Informant’s brother, Nitin was residing with his family at Wagholi and was running a gold shop namely Rajveer Gold. Nitin, brother of the informant sold Gold ornaments of Rs.2 lakhs to Om Tak and Prashant Tak, r/o. Pathardi and applicant Nilesh Sudhakar Malve was the mediator for that transaction. They both were avoiding to pay that amount and threatened Nitin. Sometimes they assured that they will pay that amount. On 16.03.2023, Om Tak and Prashant Tak assured that they will pay that amount in the next week. Therefore, on 25.03.2023 Nitin went there for recovery of that amount. However, Om Tak and Prashant Tak both abused and threatened him. Therefore, he consumed the poison in the ST Bus and committed suicide. The ambulance was called but after the examination, doctor found that Nitin had already died. The report was lodged on the second day of the incident. 4. Learned Advocate for the applicants submitted that applicant is a practicing Advocate. He has no criminal antecedents. He was only mediator for the said transaction of the gold ornaments. He never abetted Nitin for commission of suicide. There is no evidence of common intention either from the report or from the statements of appln-1702-2023 -3- the witnesses. He submitted to quash the report. 5. Learned APP for the State strongly opposed the application and submitted that name of the applicant is mentioned in the report and he was mediator for the said transaction. He has abetted the brother of the informant i.e. Nitin for commission of suicide. It is lastly prayed to reject the application. 6. On perusal of report it appears that there are allegations against the Om Tak and Prashant Tak who purchased the gold ornaments that they threatened Nitin and abused him. Therefore, Nitin committed suicide. The role of this applicant is very limited that he was only a mediator, assured for payment of those ornaments. The essential ingredients of abetment to commit suicide on the part of applicant by instigation etc. as required under Section 107 of the Indian Penal Code are not establishing from the report. There is absolutely no evidence of common intention against the applicant along with co-accused that he abetted brother of informant viz. Nitin to commit suicide. If all these facts and reasons are considered together we are of the view that it is not justifiable to ask the applicant to face the trial. We are, therefore, inclined to allow the application by exercising our inherent powers under Section 482 of appln-1702-2023 -4- the Code of Criminal Procedure, 1973. Hence, the following order : O R D E R i. Application allowed. ii. FIR vide Crime No.303 of 2023 registered at Pathardi Police Station, Dist. Ahmednagar, for the offences punishable under Section 306 read with Section 34 of the IPC is quashed as against the applicant. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE Narwade/ [PER SMT. VIBHA KANKANWADI, J.] : 1. I have gone through the order authored by learned Justice Sanjay A. Deshmukh. I agree to the operative part of the order, however, I want to add elaborate reasoning and therefore, present part of the order is added. 2. Perusal of the FIR would show that it is lodged by the brother of the deceased on 26th March 2023. He had received phone call from his maternal cousin brother Sachin Machindra Bagade around 6.30 p.m. on 25th March 2023. Then around 7.00 p.m., another brother Amol gave a phone call on the mobile of Nitin which was then picked up by S.T. conductor stating that appln-1702-2023 -5- bus was in Karanji Ghat, Pathardi and it appears that Nitin has suffered attack. The conductor had made an arrangement for the ambulance and Nitin was taken to Government Hospital, Pathardi. Thereafter informant and his relatives went to Sub District Hospital, Pathardi around 8.30 to 8.45 p.m., where the medical officer told that Nitin had expired before he could be brought to the hospital. According to the informant, Nitin had gone to Pathardi to recover the outstanding amount of Rs.2,00,000/- from Om Chaganrao Tak, Prashant Chaganrao Tak but instead of refunding him the amount, they had abused and threatened him and gave him mental harassment and the present applicant, who was the mediator, along with other two persons had forced him to consume some liquid thereby Nitin committed suicide. 3. The police papers would show that after inquest panchnama was done the dead body was sent for postmortem, the viscera was preserved and till the reports are awaited, the cause of death was deferred. Now the C.A. report has been collected, which states that testing of viscera does not reveal any poison nor it was on the clothes of the deceased. The investigating officer appears to have then sent the C.A. report to the medical officer who conducted the autopsy, who had taken note of the fact that no poison was detected in the chemical analysis. It also refers to the report from department of pathology, B.J. Medical College, Pune dated 12th January 2024, wherein it is stated that the findings are not conclusive at any cardiac events and therefore, it is stated that the final opinion as to the appln-1702-2023 -6- cause of death cannot be given but from the postmortem examination findings and reasons, “probable cause of death of deceased Nitin, probably could be due to unknown reason.” Thus, there is absolutely no evidence to support that it was suicide. 4. We would like to rely upon the decision in M. Mohan vs. State, Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626, wherein it has been observed that when there is no proximate link between event when deceased was tortured on some pretext or other then it does not amount to abetment and if the suicide is committed, then it does not amount to offence under Section 306 of the Indian Penal Code. It is observed while explaining the word “suicide” that “sui” means self and “cide” means killing, implying self-killing. That means person committing suicide must commit it by himself irrespective of means employed by him in achieving his object. 5. Another fact to be noted is that in the FIR though there is a reference of message received from Nitin, the informant has not stated as to what was the message. Statement of Amol is recorded, who is the other brother. It is recorded on 4th April 2023 and he says that on 25th March 2023 itself he had received the phone call around 6.30 p.m. by informant stating that he has received phone call of Sachin, who told that deceased Nitin has given WhatsApp message to him and Nitin is not picking up the phone. Informant then forwarded the message to witness Amol, which was as follows:- appln-1702-2023 -7- “eh fufru mnkoar ek>s iq.ks ;sFks jktohj xksYM ;k ukokus gksylsy dk nqdku vkgS ek>h 1- fuys’k lq/kkdj ekGos 2- iz’kkar Nxujko Vkd 3- vkse Nxujko Vkd ;k fr?kkaudMhy ekxhy ckdh 200000 yk[k gksrh rh eh olwyhyk vkyks vlrk rh R;kuh fnyh ukgh- Ok eyk gkuekj d#u ektk dMhy vankts 356 xzWe lksus ekya ?ksrya eyk EgksVk jksMyk dkgh rjh ik.kh ckVyh Vkdwu 2 tukauh tcjnLrh ikty vu rh?k tu fu?kwu xsyh-” . English translation of the same is as under:- “ I am Nitin Udawant and I run a wholesale shop named and styled as Rajveer Gold in Pune. [The persons] 1) Nilesh Sudhakar Malve, 2) Prashant Chhaganrao Tak and 3) Om Chhaganrao Tak, owed me Rs.2,00,000/- from previous transactions. When I came to recover the same from them, they did not pay and beaten me up and took away the gold weighing 356 grams approx. Two of them also made me to drink water forcibly at Mhota Road by adding something in the [water] bottle and all the three left the place.” (Translated by Senior Translator and Interpreter, High Court of Bombay, Bench at Aurangabad) 6. Interestingly, as of today the investigating officer has not taken the statement of said Sachin Bagade to whom the message from the mobile of deceased Nitin is stated to have been sent. One Waman Abhimanyu Gharage has produced one mobile but his statement is not recorded. How he was having the said mobile phone is a question and as of today the said mobile does not appear to have been sent for its forensic appln-1702-2023 -8- inspection. When as per the statements of the witnesses, said Sachin Bagade is stated to have received the message then instead of recording his statement and seizing his mobile, the mobile of somebody else appears to have been seized. There are statements of one Sharad Dinkarrao Jojare and Ravindra Ambadas Dahiwal, who have stated that they have received message from Nitin around 6.15 p.m. on 25th March 2023. Even their mobiles have not been seized. It is then surprising that instead of sending the message to the real brothers, why the deceased would send the message to third persons. 7. There are statements of Subhash Jadhav and Navnath Garje, who are the driver and conductor of the S.T. Bus from which deceased was travelling. They both have stated that their bus started around 4.00 p.m. from Ahmednagar to Pathardi. They reached there around 5.30 p.m. and again around 5.45 p.m. they took passengers and started towards Ahmednagar. Their Bus was in Shevgaon Chowk, Tisgaon, where some passengers got down and some boarded the Bus. Thereafter when the Bus reached at Karanji, Taluka-Pathardi, at that time it was found that one passenger was having trouble. He was not able to talk and it appears that he has suffered attack. Therefore, the Bus was stopped, ambulance was called. As the phone calls were being received on the mobile of said passenger, the conductor Subhash Jadhav attended the same and informed the relatives that the passenger is being sent in ambulance to the hospital. appln-1702-2023 -9- Of course, from their statements it is not coming on record as to what was the time when they shifted the passenger in ambulance, as it appears that the statement of ambulance driver has not been taken. But if the incident has taken place just after 5.45 p.m. then whether deceased Nitin was in a position to type the message and send it around 6.15 p.m. on the mobiles of Sachin Bagade, Sharad Jojare and Ravindra Dahiwal, is a question. If message is seen, it states that even 356 gm. gold was also taken away from Nitin by assaulting him. However, the FIR is totally silent about it. 8. The CCTV Footage from the S.T. Stand has been taken. One of the person was identified as deceased Nitin who was seen around 5.45 p.m. He was talking on mobile and in the meantime he was crossing the road. While talking on mobile, he had given indication to person towards the road going to Ahmednagar and then at 17.51 hours, after crossing the road he want towards the road going to Shevgaon which was then beyond the circumspection of CCTV. But again after a minute he came running from Shevgaon road, gave indication to the Bus to stop and then boarded the bus going towards Ahmednagar. Thus, it is to be noted that he appears to have boarded the bus right from Pathardi Bus Stand in and around 17.52 hours and other persons were not with him. 9. Taking into consideration all these pieces of evidence collected, it would be then unjust to ask the applicant to face the trial who appears to have only acted as a mediator and nothing was due from him to the appln-1702-2023 -10- deceased. Thus, here I agree to the operative part of the order, above. [SMT. VIBHA KANKANWADI] JUDGE asb/FEB25