Mr. R. R. Kakani, Advocate for the v. K. Kotecha, APP for
Facts
16-appln-274-2021 + 1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.274 OF 2021Pooja d/o Dattatray Shinde aliasPooja w/o Kiran JadhavAge: 22 years, Occu.: Household,R/o. Vijay Chowk, Vijay Nagar, Garkheda,Aurangabad. .. ApplicantVersus1.The State of MaharashtraThrough the Police Inspector,City Chowk Police Station,At Aurangabad.2.Harnabai w/o Dilip JadhavAge: 45 years, Occu.: Labour,R/o. Goshegaon, Tq. Bhokardan,District Jalna, at present Maliwada,in the house of Shamrao Raut... Respondents...WITHCRIMINAL APPLICATION NO.244 OF 2021Datta Bapurao WaghmareAge: 48 years, Occu.: Private Service,R/o. Gat No.33/01, Plot No.133,Malhar Nagar, Garkheda Parisar,Near Mukundwadi Railway Station,Aurangabad, Tq. And Dist. Aurangabad. .. ApplicantVersus1.The State of MaharashtraThrough Police Station Officer,City Chowk Police Station, Aurangabad,Tq. And Dist. Aurangabad.2.Harnabai Dilip JadhavAge: 45 years, Occu.: Labour,R/o. Goshegaon, Tq. Bhokardan,District Jalna. .. Respondents…WITHCRIMINAL APPLICATION NO.275 OF 2021[1]
Legal Reasoning
16-appln-274-2021 + 1.odtapplicants. Statements of witnesses would also show that the relativeshave taken efforts for resolving the dispute and, therefore, this is not a fitcase where this Court should exercise its powers under Section 482 ofthe Code of Criminal Procedure.6.Since the contents of the FIR are already reflected, we do notwant to reproduce the same, however, taking into consideration theentire charge-sheet, it is now required to be seen as to whether there isa prima facie case made out for taking cognizance of the offence underSections 306, 506 read with Section 34 of Indian Penal Code. For thatpurpose, we would like to rely on the decision of this Court in Dilip S/oRamrao Shirasao and others vs. State of Maharashtra and another,2016 ALL MR (Cri) 4328, and the decisions of the Hon’ble Apex Court inSanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh, 2002Cri.L.J. 2796; Madan Mohan Singh vs. State of Gujrat and another,reported in (2010) 8 SCC 628; S.S. Chheena vs. Vijay KumarMahajan reported in 2010 All MR (Cri) 3298 (S.C.)., Chitresh KumarChopra vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605, SwamyPrahaladdas vs. State of M.P. & Anr. , 1995 Supp. (3) SCC 438,Mahendra Singh vs. State of M.P., 1995 Supp.(3) SCC 731, RameshKumar vs. State of Chhattisgarh (2001) 9 SCC 618, State of Keralaand others vs. S. Unnikrishnan Nair and others, reported in AIR2015 Supreme Court 3351, wherein the law has been made clear. In[6] 16-appln-274-2021 + 1.odtDilip S/o Ramrao Shirasao and others vs. State of Maharashtra andanother, (supra), this Court, relying upon the catena of the decisions ofthe Hon’ble Supreme Court, held that it is necessary for the prosecutionto at least prima facie establish that the accused had an intention to aidor instigate or abet the deceased to commit suicide and in the absenceof availability of such material, the accused cannot be compelled to facetrial for the offence punishable under Section 306 of the Indian PenalCode.7.Taking into consideration the legal position, we are now requiredto consider the facts. From the contents of the FIR as well as statementsof the witnesses, it can be seen that applicant Pooja – wife of Kiran andKiran were not residing together since last about 7-8 months prior to thesuicide. There is no dispute as regards the fact that Kiran had hangedhimself and committed suicide. This can also be seen from the inquestpanchanama, spot panchanama and the postmortem reports. In order tobring the case under Section 306 of Indian Penal Code, as aforesaid, theactive abetment is necessary, but there is no such material on record toshow that within the said period of 7-8 months prior to 12.09.2020, theapplicants, especially, Pooja had contacted Kiran and insulting treatmentwas given to him. There is no record to show that when the amount ofRs.5,00,000/- was given by Kiran to his in-laws. A very vague statementhas been made in the FIR as well as in the suicide note. The suicide[7] 16-appln-274-2021 + 1.odtnote does not bears the date, but at this stage we take the suicide noteas it is, which reads thus :-“eh fdj.k tk/ko] iqtk f’kans & jk/kk gtkjs] Lkaxhrk f’kans] ckykthf’kans vkf.k ‘kqHke cksjkMs] nRrk=; f’kans] gjhpanz f’kans] nRrk ok?kekjs;k yksdkaeqGs eyk ekufld =kl >kyk & ek.kfld =kl [kqifnyk] ek#.k Vkd.;kph /kedh Ik.k fnyh & vkf.k ek>s iSls Ik.knsr ukgh- 5 yk[k vkgs ek>s R;kaP;kdMs iSls ekxhrys dh /kedhnsrkr ;k lxG~;k yksdkaP;k nckok[kkyh eh vkRegR;k djrks;ek>~;k vkRegR;kP;k ikBhekxs QDr f’kans ijhokj ftEesnkj vkgsvkf.k ek>~;k vkbZyk frps iSls okil djkos-”English translation of the above suicide note is as under :-“Myself Kiran Jadhav, I was harassed mentally by thesePooja Shinde, Radha Hajare, Sangita Shinde, BalajiShinde and Shubham Borade, Dattatraya Shinde,Harschandra Shinde, Datta Waghmare. They tortured mementally a lot. They even threatened to kill me and evennot ready to give my money back. They have (to give me)my 5 lakh rupees. When I asked for money (given), theythreatened me. I am committing suicide under the pressureof all these people. The Shinde family is only responsiblefor my suicide. My mother should be given back hermoney.” (Translated by Senior Translator and Interpreter, High Court of Bombay, Bench at Aurangabad)8.Thus, it is to be noted that he is using words ekufld =kl, but theacts responsible for the mental harassment have not been stated. It is[8] 16-appln-274-2021 + 1.odtalso stated that he was given threat to kill. First of all, when he was thehusband of Pooja and still the relationship was intact and also the factthat as alleged amount of Rs.5,00,000/- was due from the in laws, whythey would kill him would be the second question. When that incidenthad taken place cannot be gathered. Therefore, the suicide note doesnot quote any such incident which had happened in the proximity of thesuicide. In other words, there are no such activities which are brought onrecord which were committed by the accused persons in the proximityi.e. just prior to the suicide of Kiran, which would have amounted toabetment. The charge-sheet also gives copy of the petition underSection 9 of the Hindu Marriage Act filed by Kiran i.e. Hindu MarriagePetition No.128 of 2020 filed before the Family Court, Aurangabad on18.03.2020. So he had taken legal steps for the resumption of thecohabitation. Perusal of the entire petition would show that he had notmade a statement that he was mentally harassed by making allegationsabout impotency. He has given different reasons for which he has statedthat the wife was not resuming the cohabitation.9.The statements of witnesses are of course supporting the FIR,however, even the witnesses have not stated as to whether within thesaid period of 7-8 months, any overt act was done by any of theapplicants including the wife, which would amount to abetment ascontemplated under Section 109 and 306 of Indian Penal Code. With[9] 16-appln-274-2021 + 1.odtthis material, it would be an abuse of process of law, if the applicants areallowed to face the trial and, therefore, this is a fit case where we shouldexercise our powers under Section 482 of the Code of CriminalProcedure. Hence, the following order :-ORDERI)All the Criminal Applications are allowed.II)The FIR vide Crime No.495 of 2020 dated 16.09.2020registered with City Chowk Police Station, District Aurangabad andthe proceedings in Charge-Sheet No.6 of 2021, pending beforethe learned Judicial Magistrate First Class, Aurangabad for theoffences punishable under Sections 306, 506 read with Section 34of Indian Penal Code, stand quashed and set aside as against thepresent applicants in the respective applications. III)Fees of learned Advocate, who is appointed to represent thecause of respondent No.2 in all the matters, is quantified atRs.5,000/- in each matter i.e. Rs.15,000/- in total, to be paid by theHigh Court Legal Services Sub Committee, Aurangabad.[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[10]
Arguments
16-appln-274-2021 + 1.odt1.Harishchandra w/o Punjaji ShindeAge: 75 years, Occu.: Nil,R/o. Vijay Chowk, Garkheda Parisar,Aurangabad.2.Dattatray s/o Harishchandra ShindeAge: 48 years, Occu.: Labour,R/o. Vijay Chowk, Garkheda Parisar,Aurangabad.3.Shubham s/o Anil BoradeAge: 24 years, Occu.: Student,R/o. Vijay Chowk, Garkheda Parisar,Aurangabad. 4.Balaji s/o Dattatray ShindeAge: 20 years, Occu.: Labour,R/o. Vijay Chowk, Garkheda Parisar,Aurangabad.5.Sangita w/o Dattatray ShindeAge: 41 years, Occu.: Labour,R/o. Vijay Chowk, Garkheda Parisar,Aurangabad.6.Radha w/o Yogesh Hazare,Age: 24 years, Occu.: Household,R/o. C/o. Pravin Katariya,In front of Asha Niwas,Chelipura, Sardar Patel Road,Aurangabad. .. ApplicantsVersus1.The State of MaharashtraThrough the Police Inspector,City Chowk Police Station,At Aurangabad.2.Harnabai w/o Dilip JadhavAge: 45 years, Occu.: Labour,R/o. Goshegaon, Tq. Bhokardan,District Jalna, At present Maliwada,In the house of Shamrao Raut... Respondents…Mr. R. R. Kakani, Advocate for the applicants in all the applications.Mr. V. K. Kotecha, APP for respondent No.1/State in all the applications.Ms. Pooja K. Apache, Advocate for respondent No.2 (Appointed) in all theapplications....[2] 16-appln-274-2021 + 1.odt CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 02 JULY 2025ORDER :.Present applications have been filed initially for quashing the FIRvide Crime No.495 of 2020 dated 16.09.2020 registered with City ChowkPolice Station, District Aurangabad and later on, by way of amendment,for quashing the proceedings in Charge-Sheet No.6 of 2021, pendingbefore the learned Judicial Magistrate First Class, Aurangabad for theoffences punishable under Sections 306, 506 read with Section 34 ofIndian Penal Code. 2.Heard learned Advocate Mr. R. R. Kakani for the applicants in allthe applications, learned APP Mr. V. K. Kotecha for respondentNo.1/State in all the applications and learned Advocate Ms. Pooja K.Apache, who is appointed to represent the cause of respondent No.2 inall the applications.3.Learned Advocate appearing for the applicants submits that theapplicant in Criminal Application No.274 of 2021 is the wife of deceasedKiran, who was the son of informant/respondent No.2. Applicant inCriminal Application No.244 of 2021 is the father-in-law of deceasedKiran. Applicants in Criminal Application No.275 of 2021 are either the[3] 16-appln-274-2021 + 1.odtdistant relatives of wife of deceased Kiran or connected to the family ofthe father-in-law. It is not in dispute that the applicant Pooja got marriedto Kiran about one and half years prior to the FIR. The informant hasstated that she was residing with Kiran and Pooja. There used to bequarrels between Pooja and Kiran, as applicant Shubham Borade usedto come to their house. Shubham Borade is used to be the disciple ofsome Guru to whom Pooja was following. It is alleged that applicantPooja used to insult deceased Kiran stating that he is impotent. Shefurther states that due to the dispute, Pooja went to stay with her parentsat Aurangabad and was not ready for returning for cohabitation. Therewere attempts to bring her for cohabitation, however, in presence of therelatives from both sides, applicant Pooja reiterated the insulting wordsto deceased Kiran. Her relatives also told that they will not send Poojafor cohabitation. Therefore, Kiran had issued notice for cohabitationthrough Advocate to Pooja, however, she had not resumed thecohabitation. The informant then states about the alleged expression bydeceased Kiran around 6.00 a.m. of 12.09.2020 to her stating that hehas lend amount of R.5,00,000/- for purchasing house to the parents ofPooja. Pooja is insulting him on the ground of alleged impotency andtherefore, he is not feeling that he should live. He was feeling that heshould commit suicide and end his life. At that time, informant persuadedhim that there will be resumption of their cohabitation. He should keep[4] 16-appln-274-2021 + 1.odthope and then the informant went for work. Thereafter, when informantgave phone call to Kiran around 10.30 a.m., he told that he wasproceeding for his work. Informant was suspecting and, therefore, shereturned to home from work and found that door was closed from inside.She called Kiran, but he had not opened the door, but with the help ofneighbouring persons when the door was broken, she found that Kiranhad hanged himself. He had left a suicide note.4.Learned Advocate for the applicant submits that even afterperusing the suicide note, it can be seen that though he is framing theapplicants, yet the applicants were never in contact with Kiran since last7-8 months prior to 12.09.2020. There is delay in lodging the FIR and,therefore, when the ingredients of the offences are not made out, itwould be unjust to ask the applicants to face the trial.5.Per contra, the learned APP as well as learned Advocateappearing for respondent No.2, who has been appointed to representthe cause of respondent No.2, in the event of failure on the part ofrespondent No.2 to appear, objected the application and submitted thatwhen the suicide note has been found and the entire evidence is nowover, it would show that the present applicants had abetted thecommission of suicide by Kiran. In the suicide note, there is a mentionof about lending money as well as giving mental torture to him by the[5]