High Court
Facts
cria-2103.221 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2103 OF 20221) Vishavanath @ Vishnu S/o Ranganath Kulkarni, Age-63 years, Occu:Labour,2) Sanjay S/o Vishavanath Kulkarni, Age-42 years, Occu:Labour,3) Chandrakala Vishavanath Kulkarni, Age-58 years, Occu:Labour,4) Sharda W/o Sanjay Kulkarni, Age-40 years Occu:Household,5) Sumit S/o Sanjay Kulkarni, Age-15 years, Occu:Education, Since minor under the guardian of Applicant No.2.Applicant Nos.1 to 5 R/o- Railway StationRoad, Karmad, Taluka and District-Aurangabad,6) Balu S/o Sheshrao Hiwarale, Age-42 years, Occu:Service, R/o-Behind Sessions Court, Kranti Nagar, Aurangabad, Taluka and District-Aurangabad. ...APPLICANTS VERSUS 1) The State of Maharashtra, Through the Police Sub Inspector, Karmad Police Station, Taluka and District-Aurangabad,2) Pankaj s/o Dondiram Kulkarni, Age-34 years, Occu:Labour, R/o-Mahadev Gali, Karmad, Taluka and District-Aurangabad. ...RESPONDENTS
Legal Reasoning
cria-2103.225for the prosecution to at least prima facie establish that theaccused had an intention to aid or instigate or abet the deceasedto commit suicide and in the absence of availability of suchmaterial, the accused cannot be compelled to face trial for theoffence punishable under Section 306 of the Indian Penal Code.We would like to reproduce Paragraph Nos. 11 to 18 of the saiddecision:-“ 11. The law as to what are the requirements to constitute anoffence punishable under Section 306 of the IPC is no more resintegra. The law is very well crystalized by the Hon'ble Apex Courtin the catena of cases including in the cases of Sanju alias SanjaySingh Sengar vs. State of Madhya Pradesh, reported in 2002Cri.L.J. 2796; Madan Mohan Singh vs. State of Gujrat and another,reported in (2010) 8 SCC 628; and in the case of S.S. Chheena vs.Vijay Kumar Mahajan reported in 2010 All MR (Cri) 3298 (S.C.). 12. In the case of Sanju @ Sanjay Sengar cited supra, theappellant before the Apex Court was the brother of Neelam wife ofdeceased Chander Bhushan @ Babloo. It was the prosecution casethat after marriage of Neelam with the deceased, there wascontinuous ill-treatment by the deceased and his family membersto Neelam. As such she had gone to her parents house and startedliving with her brother, the appellant before the Apex Court. Abouttwo months prior to the incident, the appellant advised thedeceased to take his sister back to her matrimonial house andtreat her properly. It was the prosecution case that on 25th July,1998, the appellant visited the place of the parents of thedeceased and pleaded with them that his sister should be cria-2103.226rehabilitated in the matrimonial home and should not be physicallyill-treated or harassed. It was also the prosecution case that onthat day the appellant also said to have threatened the parents ofthe deceased that if they do not mend their behaviour towards hissister, he would be compelled to resort to filing a complaint underSection 498-A of the Indian Penal Code. On this, the parents of thedeceased expressed helplessness. It was the further prosecutioncase that the parents of the deceased informed the deceasedabout the same. He went to the house of parents of the appellant,where quarrel took place between them. Therefore, the deceasedreturned alone and told his brothers and other acquaintances thatthe appellant had threatened and abused him by using filthywords. On the next date i.e. on 27th July, 1998, the deceased wasfound hanging with a rope by neck on the raft of his house and hewas found dead. A suicide note was left by the deceased. On thebasis of the said suicide note, the charge-sheet was filed againstsaid Sanju alias Sanjay Sengar . A petition challenging filing ofcharge-sheet was filed before the High Court under Section 482 ofthe Code of Criminal Procedure. The same was rejected. Hence,said Sanju alias Sanjay Sengar approached the Hon'ble ApexCourt.13. The Apex Court in Sanju @ Sanjay Sengar’s case consideredthe earlier judgments in paragraphs 9 to 12 of the said judgment.It would be appropriate to refer to the same - "9. In Swamy Prahaladdas v. State of M.P. & Anr. , 1995Supp. (3) SCC 438, the appellant was charged for an offenceunder Section 306 I.P.C. on the ground that the appellantduring the quarrel is said to have remarked the deceased 'togo and die' . This Court was of the view that mere wordsuttered by the accused to the deceased 'to go and die' were cria-2103.227not even prima facie enough to instigate the deceased tocommit suicide.10. In Mahendra Singh vs. State of M.P., 1995 Supp.(3) SCC731, the appellant was charged for an offence under Section306 I.P.C basically based upon the dying declaration of thedeceased, which reads as under:"My mother-in-law and husband and sister-in-law (husband'selder brother's wife) harassed me. They beat me and abusedme. My husband Mahendra wants to marry a second time.He has illicit connections with my sister-in-law. Because ofthose reasons and being harassed I want to die by burning."11. This Court, considering the definition of 'abetment' underSection 107 I.P.C., found that the charge and conviction ofthe appellant for an offence under Section 306 is notsustainable merely on the allegation of harassment to thedeceased. This Court further held that neither of theingredients of abetment are attracted on the statement ofthe deceased.12. In Ramesh Kumar vs. State of Chhattisgarh (2001) 9SCC 618, this Court while considering the charge framed andthe conviction for an offence under Section 306 I.P.C. on thebasis of dying declaration recorded by an ExecutiveMagistrate, in which she had stated that previously there hadbeen quarrel between the deceased and her husband and onthe day of occurrence she had a quarrel with her husbandwho had said that she could go wherever she wanted to goand that thereafter she had poured kerosene on herself andhad set fire. Acquitting the accused this Court said : cria-2103.228"A word uttered in a fit of anger or emotion without intendingthe consequences to actually follow cannot be said to beinstigation. If it transpires to the court that a victimcommitting suicide was hypersensitive to ordinary petulance,discord and difference in domestic life quite common to thesociety to which the victim belonged and such petulance,discord and difference were not expected to induce asimilarly circumstanced individual in a given society tocommit suicide, the conscience of the court should not besatisfied for basing a finding that the accused charged forabetting the offence of suicide should be found guilty."14.After considering the earlier judgments, Their Lordshipsobserved thus at paragraph 13 -"13. .......... It is in a fit of anger and emotional. Secondly,the alleged abusive words, said to have been told to thedeceased were on 25th July, 1998 ensued by quarrel. Thedeceased was found hanging on 27th July, 1998. Assumingthat the deceased had taken the abusive language seriously,he had enough time in between to think over and reflect and,therefore, it cannot be said that the abusive language, whichhad been used by the appellant on 25th July, 1998 drived thedeceased to commit suicide. Suicide by the deceased on 27thJuly, 1998 is not proximate to the abusive language utteredby the appellant on 25th July, 1998. The fact that thedeceased committed suicide on 27th July, 1998 would itselfclearly pointed out that it is not the direct result of thequarrel taken place on 25th July, 1998 when it is alleged thatthe appellant had used the abusive language and also toldthe deceased to go and die. This fact had escaped notice ofthe courts below.” cria-2103.22915.Their Lordships of the Apex Court further have reproducedthe suicide note in the said case in paragraph 14 of the judgment,wherein Sanjay Sengar was directly implicated to be the personresponsible for suicide of the deceased. After reproducing the saidsuicide note, Their Lordships observed thus at paragraph 15 -"15. ........ The prosecution story, if believed, shows that thequarrel between the deceased and the appellant had takenplace on 25th July, 1998 and if the deceased came back tothe house again on 26th July, 1998, it cannot be said thatthe suicide by the deceased was the direct result of thequarrel that had taken pace on 25th July, 1998. Viewed fromthe aforesaid circumstances independently, we are clearly ofthe view that the ingredients of 'abetment' are totally absentin the instant case for an offence under Section 306I.P.C. ....…"After these observations, Their Lordships allowed the appeal andquashed and set aside the charge-sheet.16.In the case of Madan Mohan Singh, [2010 ALL MR (Cri)3245 (S.C.)] (cited supra), the petitioner was working as a DET inBharat Sanchar Nigam Ltd. The deceased i.e. DeepakbhaiKrishnalal Joshi has committed suicide. On the basis of complaintfiled by his wife, an FIR came to be registered. The petitioner hadapplied for discharge. The trial Court rejected it. The Gujarat HighCourt upheld the order of the trial Judge. Being aggrieved therebythe petitioner has approached the Apex Court. The prosecutionheavily relied on the suicide note of the deceased wherein it wasstated that the petitioner was responsible for his death. The ApexCourt negating the contention on behalf of prosecution observedthus:- cria-2103.2210"10. We are convinced that there is absolutely nothing in thissuicide note or the FIR which would even distantly be viewedas an offence much less under Section 306 IPC. We could notfind anything in the FIR or in the so-called suicide note whichcould be suggested as abetment to commit suicide. In suchmatters there must be an allegation that the accused hadinstigated the deceased to commit suicide or secondly, hadengaged with some other person in a conspiracy and lastly,that the accused had in any way aided any act or illegalomission to bring about the suicide.11. In spite of our best efforts and microscopic examinationof the suicide note and the FIR, all that we find is that thesuicide note is a rhetoric document in the nature of adepartmental complaint. It also suggests some mentalimbalance on the part of the deceased which he himselfdescribes as depression. In the so- called suicide note, itcannot be said that the accused even intended that thedriver under him should commit suicide or should end his lifeand did anything in that behalf. Even if it is accepted that theaccused changed the duty of the driver or that the accusedasked him not to take the keys of the car and to keep thekeys of the car in the office itself, it does not mean that theaccused intended or knew that the driver should commitsuicide because of this.12. In order to bring out an offence under Section 306 IPCspecific abetment as contemplated by Section 107 IPC on thepart of the accused with an intention to bring about thesuicide of the person concerned as a result of that abetmentis required. The intention of the accused to aid or to instigateor to abet the deceased to commit suicide is a must for thisparticular offence under Section 306 IPC. We are of the clear cria-2103.2211opinion that there is no question of there being any materialfor offence under Section 306 IPC either in the FIR or in theso-called suicide note.13. It is absurd to even think that a superior officer like theappellant would intend to bring about suicide of his driverand, therefore, abet the offence. In fact, there is no nexusbetween the so-called suicide (if at all it is one for which alsothere is no material on record) and any of the alleged acts onthe part of the appellant. There is no proximity either. In theprosecution under Section 306 IPC, much more material isrequired. The courts have to be extremely careful as themain person is not available for cross- examination by theappellant-accused. Unless, therefore, there is specificallegation and material of definite nature (not imaginary orinferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly apleasant experience. The person like the appellant in thepresent case who is serving in a responsible post wouldcertainly suffer great prejudice, were he to face prosecutionon absurd allegations of irrelevant nature. In the similarcircumstances, as reported in Netai Duta v. State of W.B.,this Court had quashed the proceedings initiated against theaccused.14. As regards the suicide note, which is a document ofabout 15 pages, all that we can say is that it is an anguishexpressed by the driver who felt that his boss (the accused)had wronged him. The suicide note and the FIR do notimpress us at all. They cannot be depicted as expressinganything intentional on the part of the accused that thedeceased might commit suicide. If the prosecutions are cria-2103.2212allowed to continue on such basis, it will be difficult for everysuperior officer even to work." emphasis supplied)17.In case of S.S.Cheena (cited supra) , there was a disputebetween one Saurav Mahajan, who was a final year student of LawDepartment and Harminder Singh, a fellow student of the sameclass with regard to the theft of a mobile phone. This came to thenotice of M.D.Singh, the then Head of the Law Department whoasked both the students to submit their versions of the incident inwriting. The deceased and Harminder gave their versions and,thereafter, M.D.Singh forwarded their versions to the Universityauthorities for taking necessary action. An inquiry was conductedon 13th October 2003 by the Security Officer of the University ShriS.S.Chheena. During the course of inquiry, on 17th October 2003,Saurav Mahajan committed suicide by jumping in front of thetrain. A suicide note was seized from the the pocket of thedeceased. On the complaint of father of the deceased, an offenceunder Section 306 of I.P.C. was registered against HarminderSingh. During the course of trial, S.S.Cheena was also impleadedas accused. Being aggrieved by the framing of charge, S.S.Cheenaapproached the High Court. The High Court refused to interfere.Being aggrieved thereby, said S.S.Cheena approached theSupreme Court. The Apex Court observed thus:"27. This Court in Chitresh Kumar Chopra v. State (Govt. ofNCT of Delhi) (2009) 16 SCC 605 had an occasion to dealwith this aspect of abetment. The Court dealt with thedictionary meaning of the words "instigation" and "goading".The Court opined that there should be intention to provoke,incite or encourage the doing of an act by the latter. Eachperson's suicidability pattern is different from the other. Eachperson has his own idea of self-esteem and self-respect. cria-2103.2213Therefore, it is impossible to lay down any straitjacketformula in dealing with such cases. Each case has to bedecided on the basis of its own facts and circumstances.28. Abetment involves a mental process of instigating aperson or intentionally aiding a person in doing of a thing.Without a positive act on the part of the accused to instigateor aid in committing suicide, conviction cannot be sustained.The intention of the legislature and the ratio of the casesdecided by this Court is clear that in order to convict aperson under Section 306 IPC there has to be a clear mensrea to commit the offence. It also requires an active act ordirect act which led the deceased to commit suicide seeingno option and that act must have been intended to push thedeceased into such a position that he committed suicide.29. In the instant case, the deceased was undoubtedlyhypersensitive to ordinary petulance, discord and differenceswhich happen in our day-to- day life. Human sensitivity ofeach individual differs from the other. Different peoplebehave differently in the same situation.30. When we carefully scrutinize and critically examine thefacts of this case in the light of the settled legal position theconclusion becomes obvious that no conviction can be legallysustained without any credible evidence or material onrecord against the appellant. The order of framing a chargeunder Section 306 IPC against the appellant is palpablyerroneous and unsustainable. It would be criminal travesty ofjustice to compel the appellant to face a trial without anycredible material whatsoever. Consequently, the order offraming charge under Section 306 IPC against the appellant cria-2103.2214is quashed and all proceedings pending against him are alsoset aside." (emphasis supplied)18.Recently, in the case of State of Kerala and others vs. S.Unnikrishnan Nair and others, reported in AIR 2015 SupremeCourt 3351 : [2015 ALL SCR 2824], Their Lordships had anoccasion to consider a similar case. In the said case, the ChiefInvestigating Officer had committed suicide pending investigationin a murder case. In the suicide note, it was alleged that two of hissubordinates were responsible for his this situation. There weresome allegations against one Advocate and the Chief JudicialMagistrate. The First Information Report came to be lodgedagainst the subordinate officers. They filed a petition underSection 482 of the Criminal Procedure Code. The Kerala High Courtquashed the First Information Report. Being aggrieved thereby,the State went in appeal before the Hon'ble Apex Court. Whiledismissing the appeal, the Their Lordships of the Apex Courtobserved thus :“13. As we find from the narration of facts and the materialbrought on record in the case at hand, it is the suicide notewhich forms the fulcrum of the allegations and for properappreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to holdthat there has been any abetment by the respondents. note,except saying that the the respondents The compelled him todo everything and cheated him and put him in deep trouble,contains nothing else. The respondents were inferior in rankand it is surprising that such a thing could happen. Thatapart, the allegation is really vague. It also baffles reasons,for the department had made him the head of theinvestigating team and the High Court had reposed completefaith in him and granted him the liberty to move the court, in cria-2103.2215such a situation, there was no warrant to feel cheated and tobe put in trouble by the officers belonging to the lower rank.That apart, he has also put the blame on the Chief JudicialMagistrate by stating that he had put pressure on him. Hehas also made the allegation against the Advocate." 8.Since the entire law has been considered in the above-saidcase, we are relying upon the said authority.9.Now, turning to the facts of the case, it is to be noted thatas per respondent No.2, there was ancestral land belonging tothe family which was acquired for D.M.I.C. project and applicantNo.1 had received an amount of Rs.50,00,000/-. According todeceased Dhondiram and respondent No.2, Dhondiram has halfshare in the same, which according to them was not given byapplicant No.1. It is stated that Dhondiram was visiting toapplicant No.1’s house, 15 to 20 days prior to the FIR, daily todemand his share. However, the share was not given. On thecontrary, applicant No.1 left the house when Dhondiram andrespondent No.2 had gone along with other relatives to thehouse of applicant No.1. The relatives used to ask applicantNo.1, as to whether the share has been given to Dhondiram andhe used to say yes. Dhondiram was then going to the house of cria-2103.2216applicant No.1 in the morning and evening daily. At some time,all the applicants had even man-handled Dhondiram, and son-in-law of applicant No.1 refused to give the amount. As a result ofwhich, according to respondent No.2, Dhondiram committedsuicide. At that time he has left the suicide note. 10.If we consider the suicide note, (even if we accept for amoment that it is in the handwriting of the deceased), it wouldshow that first paragraph says about acquisition of property forD.M.I.C. Project and then the second paragraph says that landadmeasuring 66 Gunthas has been given to his share but as perCourt’s decision, amount of Rs.44,00,000/- has been depositedin Maharashtra Bank. Amount of Rs.7,00,000/- has been givento sister Kalabai Sheshrao Hiwaral and one Balu Hiwaral. Amountof Rs.5,00,000/- has been given to one Ramkrushna Kulkarni.Then Rs.5,00,000/- were given to Raju Kulkarni and DeelipKulkarni. But the amount of the deceased and brother is stillpending, so also amount of another sister Gayabai is pending. Heis paying visit to the house of brother but the brother is notgiving amount. If he commits suicide, then after giving names ofthe applicants, he says that they should be held responsible. Thesuicide note runs in pages, but it also states about the partition. cria-2103.221711.Thus, even if we take the said suicide note as it is, it doesnot fulfill the ingredients of Section 306 read with Section 107 ofthe Indian Penal Code. The deceased could have definitelyknocked the doors of the Civil Court if at all he has share in theproperty. Further, there appears to be no date on the suicidenote. Therefore, we are unable to get when exactly the suicidenote was written. An important point is that there was noevidence, even prima facie, from the entire charge-sheet, toarrive at a conclusion that the applicants had mens rea thatdeceased should commit suicide.12.In view of the said legal position and after considering thefacts of the case, we are of the opinion that it would be unjust toask the applicants to face the trial. The case is squarely coveredin the parameters laid down in State of Haryana vs. Ch. BhajanLal and others, AIR 1992 SC 604. Therefore, we proceed to passthe following order:- O R D E R(I)Application stands allowed. cria-2103.2218(II)The First Informant Report vide Crime No. 178 of 2022registered with Karmad Police Station, District-Aurangabad andthe proceedings in Sessions Case No.511 of 2023 pending beforethe learned Sessions Judge, Aurangabad, for the offencepunishable under Section 306 read with Section 34 of the IndianPenal Code, stands quashed and set aside as against ApplicantNos.1 to 6. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/SEP24
Arguments
cria-2103.222 ... Mr. Ujwal S. Patil Advocate for Applicants. Mr. S.A. Gaikwad, A.P.P. for Respondent No.1. Mr. V.S. Wakale Advocate for Respondent No.2. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 22nd AUGUST, 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Heard finally with the consent of the learnedAdvocates for the rival parties. 2.Present Application has been filed under Section 482 of theCode of Criminal Procedure for quashing the First InformationReport (for short “the FIR”) vide Crime No.178 of 2022registered with Karmad Police Station, District-Aurangabad forthe offence punishable under Section 306 read with Section 34of the Indian Penal Code and by way of amendment for quashingand setting aside the proceedings in Sessions Case No.511 of2023 pending before the learned Sessions Judge, Aurangabad.3.Heard learned Advocate Mr. Patil for applicants, learnedAPP Mr. Gaikwad for respondent No.1 – State and learned cria-2103.223Advocate Mr. Wakale for respondent No.2.4.Learned Advocate for the applicants has vehementlysubmitted that perusal of the FIR, which is lodged by respondentNo.2 Pankaj, who is son of deceased Dhondiram, would showthat there were civil disputes. In fact the partition had takenplace long back, still deceased was insisting that he should begiven share in the compensation amount in respect of the landwhich was acquired for D.M.I.C. project. It is alleged thatpresent applicants were avoiding to give the alleged share andwhen ever the deceased used to call applicant No.1, he used tosay that he would give the amount and immediately used to cutthe phone. At the most the deceased could have instituted suitor could have taken appropriate legal action. But at no point oftime, the action of the applicants can amount to instigate thedeceased to commit suicide. It would be then unjust to ask theapplicants to face the trial. Even the alleged suicide note ifconsidered as it is, will not support the prosecution to prove theinstigation.5.Per contra, the learned APP as well as learned Advocate for cria-2103.224respondent No.2 objected the application and submitted thatsince now investigation is over and charge-sheet is filed onrecord, Sessions Case is also committed to the Court ofSessions, let the applicants face the trial. The opinion of thehandwriting expert is still awaited. In the suicide note thedeceased has clearly blamed the applicants. 6.The first and foremost fact which is required to beconsidered is the law on the point. To constitute an offenceunder Section 306 of the Indian Penal Code, the prosecutionshould establish (1) that the person has committed suicide and(2) that the suicide was abetted by the accused/accusedpersons. Thus, for proving the said offence, proof for abetmentof the commission of the crime is the sine qua non. Therefore,we will have to read Section 306 together with Section 107 ofthe Indian Penal Code.7.We would like to rely on Dilip S/o Ramrao Shirasao andothers vs. State of Maharashtra and another, 2016 ALL MR (Cri)4328, wherein this Court, relying upon the catena of thedecisions of the Hon’ble Supreme Court, held that it is necessary