SHANTIBHAI J. VAGHELA AND ANR. versus STATE OF GUJARAT AND ORS.

Citation: [2012] 12 S.C.R. 544 · Decided: 09-11-2012 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Dismissed

Judgment (excerpt)

[2012] 12 S.C.R. 544 
A 
SHANTIBHAI J. VAGHELA AND ANR. 
B 
v. 
STATE OF GUJARAT AND ORS. 
(Criminal Appeal No. 1805 of 2012) 
NOVEMBER 9, 2012 
[P. SATHASIVAM AND RANJAN GOGOi, JJ.] 
Code of Criminal Procedure, 1973- s.482 - Two minors 
residing in a Ashram went missing - Couple of days later, their 
c dead bodies found from the bed of the river located by the 
side of the Ashram - FIR lodged against seven inmates of 
the Ashram u/s.304 /PC and other offences - Quashed by 
High Court insofar as s.304 /PC was concerned- Justification 
- Held: There was absence of any acceptable material 
. 0 
disclosing commission of offence u/s.304 /PC - Principal 
a/legations made in the FIR- of not carrying out a prompt 
search of the missing children; of delay in lodging of formal 
complaint with the police and failure to take adequate 
measures to guard the access from the ashram to the river, 
E cannot make out a case punishable uls.304 /PC - Further, 
the post mortem report pointed to the possibility of death due 
to drowning - High Court, thus, did not err in exercising its 
jurisdiction to interdict investigation of the offence u/s. 304 /PC 
against the accused named in the FIR - Such power, though 
F 
must be exercised sparingly, has to be invoked if the facts of 
any given case so demand - This is precisely what the High 
Court did in the present case without departing from any of 
the well settled principles of Jaw - Penal Code, 1860 - s. 304. 
' 
Two children studying and also residing in a Gurukul 
G located in a Ashram went missing. A couple of days later, 
their dead bodies were found from the bed of the river 
located by the side of the Ashram. FIR was formally 
lodged in respect of the incident alleging commission of 
offences under Section 304/34 of IPC and Section 23 of 
H 
544 
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 
545 
GUJARAT AND ORS. 
the Juvenile Justice (Care and Protection) Act, 2000. 
A 
Seven inmates of the Ashram were named as accused. 
The specific stand taken in the FIR was that had a prompt 
search been carried out, possibly, the children could have 
been found alive or, at least, the dead bodies could have 
been recovered earlier so as to enable an effective post-
B 
mortem of the bodies to determine the precise cause of 
death. It was also alleged that the Ashram authorities had 
advised the parents of the child_ren to resort to various 
tantric practices to find out about the whereabouts of the 
children instead of promptly approaching the police. The c 
failure of the said authorities to effectively man the gates 
behind the ashram adjoining the river bed was also 
highlighted in the FIR as another omission on the part of 
the ashram authorities so as to give rise to the 
commission of the offence of culpable homicide. 
D 
The High Court, however, quashed the FIR insofar as 
Section 304 IPC was concerned, and therefore the 
present appeals. 
Dismissing the appeals, the Court 
HELD: 1. Commission of the offence of culpable 
homicide would require some positive act on the part of 
the accused ;:is distinguished from silence, inaction or a 
mere lapse. Allegations of not carrying out a prompt 
search of the missing children; of delay in the lodging of 
formal complaint with the police and failure to take 
adequate measures to guard the access from the ashram 
to the river, which are the principal allegations made in 
E 
F 
the FIR, cannot make out a case of culpable homicide not 
amounting to murder punishable under Section 304 IPC. 
G 
To attract the ingredients of the said offence something 
more positive than a mere omission, lapse or negligence 
on the part of the named accused will have to be present. 
Such statements are conspicuously absent in the FIR 
H 
546 
SUPREME COURT REPORTS 
[2012] 12 S.C.R. 
A filed in the present case. A reading of the relevant part of 
the opinion of the Forensic Medicine Department of the 
Medical College would go to show that possibility of 
death qf the children by drowning cannot be ruled out. 
Expert opinion available on record indicatef' that mere 
B absence of diatom will not exclude the aforesaid 
possibility. The relevant part of the post mortem report, 
as extracted, indicates presence of mud in the trachea of 
the children which fact also point to the possibility of 
death by drowning. The absence of any injuries on the 
c body of the deceased; the attack on the bodies by wild 
animals and the possibility of the taking away of the 
missing organs of

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