IN THE COURT DISTRICT AND SESSION AT THANE

AT THANE

Session case 198 of 2022

State of Maharashtra through Kashimira police

Station And Anr

…………. Petitioner

V/s

Amar Annasaheb Kumbhar And Others

……………. Accused

APPLICATION UNDER SECTION 239 OF

CRIMINAL PROCEDURE CODE FOR
DISCHARGING THE ACCUSED.

MAY IT PLEASED YOUR HONOUR

On Behalf abovename Accused No. 1to 4 it state as

under :-

1) The Petitioner No. 2 had lodged the First Information Report ( CR

No I-57 /2021 ) against the Accused no 1 to 4 At Kashimira Police
station under Section 313,498A, 323 ,504 506 and 34 of Indian
Penal Code .
2) The Accused state that the FIR lodged by the Petitioner no .2 is
false and baseless has there no concrete Evidence against the
Accused No. 1 to 4.
3) The Accused further states that the petitioner had filed 3 cases
against Accused since 2020 The Petitioner No.2 had initially filed
PWDVA Case No 270 of 2020 for relief under Protection of Domestic
Violence Act However the she herself moved Withdrawn Pursis
before JMFC Court through her Advocate the said matter was
referred to Lok Aadalat as the following order passed on dated
30/4/2023 Hence the said matter is disposed now. Moreover the
Petitioner No.2 had Also Filed the Mataineance Application at
Thane Court Criminal Miscellaneous Application No 2564of 2021
which the petitioner No .2 had filed withdrawn Pursis before the
JMFC Court at Thane hence the following order was passed
19/10/2023 the said matter was disposed off. The Copy of Order
passed by Hon’ble Court is hereby annexed and marked AS
Exhibit A
4) The accused further states that Accused had filed the Quashing of
FIR on merits under section482 of Criminal Procedure Code and
226 AND 227 OF Indian Constitution Act ( Criminal Writ Petition No
3034 of 2021 ) However the said matter is at pre Admission stage
further the notice was issued to Petitioner No. 2 hence even she
appeared before the court through her Advocate therefore
mentioned that Petitioner no.2 to Quash the FIR by Consent. Hence
the said matter was place 27/2/2024 but it was not listed before he
Hon’ble High Court hence the petitioner had moved the Praecipe For
Circulation. The Accused is also annexing the copy of Writ
petition file by the Accused before Hon’ble High Court is hereby
annexed andmarked as EXHIBIT A1
5) The Accused further states that contention made by the petitioner
no .2 is contradictory as per statement made in Dv Petition and her
statement at FIR.

BRIEF FACTS OF PROSECUTION CASE AS UNDER

1) The Petitioner No .2 ( Original Complainant ) i.e Mrs Ashwini

Amar Kumbhar Age 29 Years is a wife of a Accused o .1 who had
lodged the said FIR against the Present accused . The Petitioner
No. 2 sattes that she had alleged that the present application
had gave inhuman treatment to the Petitioner no .2 since her
marriage i.e since 2/6/2013 The petitioner NO .2 further
submits that she had gone to Family doctor Dr. Anita Shinde
along with accused no .1 in September 2018 fpr stomach pain
and as per the advise of doctor sonography of Petitioner no 2 was
done on 18/9/2018 /. The Petitioner no ,2 found out that she
was 7 to 8 weeks pregnant further submits that on 4/10/2018
her husband has asked her to take pills for miscarriage without
her wish and as such she met with miscarriage. However there
is no iota evidence against the Accused and Accused no .1 had
taken pills from concerned family doctor and further there no
evidence to show that the Accused no 1 to 4 had used any
physical force on the petitioner no.2 to take such pills . The
respondent number 2 further state that the since January 2019
she used to go for job and she further submits that she had given
Rs 500 less from her salary and hence the accused no ..1 to 3
had beaten her and drove her out of her matrimonial house and
she is residing at her parental home from January 2019 to till
date i.e till filing of present petition
Hence the present FIR is filed against petitioner by the
Petitioner no .2

Brief Facts leading to present Discharge Application

1) The Accused states that Accused no .1 is only earning hand
in their family and he has to look after his old aged parents
no .2 and 3. The accused further states that accused are
having a good reputation in the society
2) The accused further states that accused no .2 and 3 are
senior citizen and suffering from health issued such as
asthama, high blood pressure , diabetes and involved
/dragged unnecessarily by the petitioner no .2 without any
their fault as the Accused no .1 and petitioner no .2 were
residing separately since year 2016 – January 2019 on leave
and licensee basis.
3) The Accused further states that Accused no .4 is doing his
work in pune and residing with his family member in pune
and as not any way responsible for alleged act of miscarriage
of the petitioner no .2 and as such unnecessarily involved in
the FIR . The Accused further submits that the Accused no
.4 was studying at Sanjay Bhokare Group Institute Miraj for
graduation and further Accused no .4 took admission for post
Graduation at Padmobhooshan Vasantroadada Patil
institute of technology budhagaon Kolhapur from year 2013
to 2015 . The Accused further submits that the as such
accused no .4 was not a way concerned with the allegation in
the present FIR as her was dragged in the list of accused
merely as he is a brother of accused no1 and just defame his
reputation in the society as large. The Accused No 4 is
relying on copy of educational Certificate to prove his
contention is hereby annexed and marked as EXHIBIT B
4) The Accused further states that Accused no .2 and 4 advice
in good intention to accused no .1 and petitioner no .2 to live
separately as Petitioner no .2 don’t want live with joint family
and forced Accused no .2 to live separately further there was
no option left for the accused no .1 but to leave accused.the
accused further states that Accused no .1 and Petitioner no
.2 was residing separately in ghansoli and in haware city,
Thane since 1/12/2016 to 11/8/2019 as such the accused
no .1 is annexing the copy of Leave and license agreement on
record in order to prove his contention that there no nexus
of petitioner no .2 and 4 giving inhuman treatment as alleged
by the petitioner no .2 as they both were residing separately
from the family member i.e that accused no 2 to 4. The
Accused is annexing the copy of rent agreement for
proving his contention hereby annexed and marked as
EXHIBIT C COLLY
5) The Accused further submits that petitioner had gone with
Accused no .1 to Dr Vinaya Thakur on 21/1.2017 and to Dr
Shukla on 5 /4/2018 , Dr Mahajan of Mira Road 2/2/2108
,13/3/2018 and after that considering all medical
 prescription it is crystal clear that when the complainant was
inserted with “COPPER T”. due to ill health of petitioner no
.2 and hence there was no chance of getting pregnant. The
Accused are annexing the of said medical Reports for
proving his contention hereto annexed and marked as
EXHIBIT D.
6) The Accused further states Accused no .1 had never brought
any pills of Miscarriage for the petitioner no .2.
7) The Accused further submits that petitioner no .2 had filed
DV CASE bearing no 270/2019 in Vasai Court wherein she
had mentioned in para no 10 of her said application that the
accused no .1 had forced her to go for MTP and as such in
order to save her life she had gone for MTP against her wish
which is complete contradictory statement to allegation in
present FIR . The accused no.1 is annexing the certified
copy of dv application along with respondentno .2
affdavit and list of document for proving his contention
hereto annexed and marked as exhibit E
8) The Accused further submits that in year 2014 the accused
had celebrate baby shower of First Child i.e Vaishnavi Amar
kumbhar in that it clear shows that accused are fulfilling all
wish of Petitioner no .2 . The Accused is annexing the copy
of Photograph for proving his contention hereby annexed
and marked as EXHIBIT F COLLY
9) The Accused further states that Accused no .1 along with
petitioner no .2 with her daughter Vaishnavi Kumbhar
residing happily and the accused no .1 annexing the
photograph in order to prove his contention that accused no
.1 and Petitioner no .2 that there were having cordial
relationship as husband and wife The Accused is annexing
the copy of photograph for proving his contention
hereby annexed and marked as EXHIBIT G COLLY
10) The Accused further states that petitioner no .2 had falsely
filed FIR dated 19/1/2021 against the Accused merely to
harass the accused without any of their fault
11) The Accused further states that there no documentary
evidence on record to prove the alleged miscarriage of 4 years
back and the present FIR filed by the Petitioner no .2 is after
expiry of 3 years of the miscarriage which is colourable
version and as such afterthough story
12) In Citation Referred in Dilip Singh v/s State of Punjab 1953
ccr l.j 1465 ( Supreme Court ) case : It was held that lodging
FIR is quit often result in embellishment which is creature of
afterthough . on account of delay the report is not only bereft
of the advantage , danger creep in of the introduction of the
coloured version , exaggerated or concocted story as the
 result of deliberatization and consult. It therefore essential
delay in Lodging FIR report should be satisfactorily examined
13) The Petitioner submits that there no no bad antecedent or
complaint against the accused
14) The Accused further submits that they had falsely implicated
in the case and they had not committed any offence as alleged
by the prosecution against the applicant/ accused is after
thought false and concocted. Similarly there are no
reasonable grounds to believed that they had committed the
alleged offence/ and or involved in anyways.
15) The Accused further submits that even on perusal of the FIR
there no cogent Evidence so as to connect the petitioner with
alleged offence. Similarly there is no specific role or overt act
attributed to the accused nor any of the document alleged
recovered by the Police are capable of implicating them in
commission of alleged offence. A statement casually given is
not FIR.
16) The Accused further submits that Petitioner no .1 ought to
have record statement of family doctor viz Dr Anita Shinde
and Accused no 1 and Petitioner no .2 before lodging FIR
under section 313 of IPC as there no statement of Doctor was
recorded by the Petitioner no .1 as Gynecologist only can do
MTP or prescribe for pills for termination of pregnancy and
the above said doctor was just a Homepath and as such there
is no any truth in the allegation leveled against the petitioner
no .1 in alleged FIR. The accused further states that even in
Chargesheet the petitioner no .1 had not recorded the
statement of Dr Anita Shinde.
17) The Accused further states that the accused no .1 had not
done any fair investigation in the present case and the
Petitioner no .1 is merely pressurizing the accused no .1
inpolice inquiry to accept the guilt which he had never done
and as such there is no violation of Fundamental Rights of
personal Liberty.
18) The Accused further states that they are merely victim of
circumstances and they are no way concerned with the said
offence . Hence they cannot levelled as Accused having
committed any offence with knowledge . In fact mens rea
cannot attributed to accused in the case
19) The Accused further states that there no incriminating
document and /or material required to be recovered and or
discovered from the present accused as the same are already
submitted to the police
20) The Accused further submits that on perusal of factual
position and the records in the present matter considering
these vita aspect it is crystal clear that the offences
 punishable under section 498A ,313,323 594 .506 and 34
IPC. Cannot be attracted against the present accused
21) The Accused submits that as per Section 498A of Indian
Penal Code - Husband or relatives of husband of a women
subjecting her to cruelty shall be subject to imprisonment for
term of 3 years and shall also be liable to fine. The Accused
submits that there is no demand of dowry ever made by the
Accused from the Petitioner No. 2 or Petitioner No. 2 had
not filed any documentary evidence in order to prove her
contention of dowry demand and as Accused No. 1 and r
Petitioner No. 2 were residing separately and hence, there is
no any material on record to prove Section 498 A of Indian
Penal Code against any of the Accused 2 to 4 as alleged by
the Petitioner no .2 .
22) The Accused submits that the basic ingredient to level the
offence of miscarriage against the petitioners no. 2 is missing
in the case. Even during the police. investigation police had
not even checked about the medical certificates in order to
prove the M.T.P. of the Petitioner No. 2. The Petitioner No. 1
had not even checked with the provisions of Section 312 of
Indian Penal Code along with its explanation as follows:
S.312 of Indian Penal Code Whoever voluntary causes a
woman with child to miscarry, shall, if such miscarriage be
not caused in good faith for the purpose of saving the life of
the woman, be punished with the imprisonment of either
description for a term which may be extended to three years,
or with fine,or with both and if the woman be quick with
child, shall be punished with imprisonment of either
description for a term which may be extended to seven years
and shall also be liable to fine. Explaination: A woman who
causes herself to miscarry, is within the meaning of this
section.* And as such the Petitioner No. 2 herself is
responsible for her own miscarriage which fact the Petitioner
No. 1 had not considered at all and as such the investigation
done by the concerned Investigation Officer is not at all fair
and merely just to involve the accused without their fault as
the offence has to be registered against the Petitioner No. 2
and not against the Accused . A The Accused states that the
FI.R. is only an afterthought and has been registered after
more than 3years and with the difference in statement of the
Petitioner No. 2's domestic violence complaint with certain
vested interest
23) The Accused states that there is not a single complaint
made by the Petitioner No. 2 against her Accused or his
parents since year 2013 to till 19/1/2021.The Accused
states that FIR is completely false and politically motivated
to silence the Accused and to dance the Accused as per the
 tune of the Petitioner No. 2. That on a bare reading of the
facts narrated in the F.I.R. it is evident that it does not
narrate the commission of cognizable offence when the
miscarriage is done by the Petitioner No. 2 as she herself
submits in para No. 10 of her domestic violence application
as follows :Paragraph No. 10 The applicant No. 1 further
states that when the applicant No. 1 doing job for the
purpose to earn money to satisfy the need of respondent
No. 1 andother respondents they were taking all the
salary of the applicant No. 1 and the respondent did
notallow the applicant to retain few monev out of
hersalary for her personal use or expenses andwhenever
applicant No. 1 tried to retained smaller amount of
money from her salary for her own expenses, respondent
used to beat me just like a slave, and in the meantime
again applicant again conceived, and at this time again
respondent No. 1forced me to go for MT.P. (Medical
Terminationof Pregnancy) against my wish and desire
Applicant No. 1 further states that the respondent
No. 1 tortured and pressurized to go for M.T.P.against my
will/wish, and again the applicant inorder to save her life
went for M. T.P./)
24) The FIR has been registered mala fide so that Petitioner No.2
can threaten the Accused and prevent him from exercising
his fundamental right to freedom of speech and expression.
If Petitioner No. 1s allowed to conduct investigation based
on such blatant abuse of police power it will have effect on
Accused exercise of his right of freedomof expression.
25) The police authority had not properly investigated the
present matter by conducting fair inquiry with the alleged
Doctor before filing of F.I.R.
26) That the entire complaint is based on merely words which no
prudent man could ever believed

Under this circumstances it humbly prayed that

 ThE Hon’ble Court May discharge the Accused no .1 TO 4

From CR no I -57OF 2020 ) levelled against section 498A
323 , 313 and 34 IPC.
 Passed any other order court may deemed fit for in favour
of Accused

Placed : Thane

Dated : 2/3/2024 Accused no .1