Criminal Application No. 2754 of 2023 · High Court · 2025

11 APPLN.2754.2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.1 CRIMINAL APPLICATION NO. 2754 OF 20231.Raju s/o Maroti NilewarAge 36 years, Occ: Labour R/o: Palsa, Taluka Hadgaon District: Nanded.2.Gayabai w/o Maroti NilewarAge 65 years, Occ: Household R/o: Palsa, Taluka Hadgaon District: Nanded.3.Jayshree d/o Ganpat NilamwarAge 23 years, Occ: Household R/o: Warwat, Taluka Kandhar District: Nanded.4.Sanjay @ Pintu s/o Maroti NilewarAge 30 years, Occ: Labour R/o: Palsa, Taluka Hadgaon District: Nanded.… Applicants(Orig. Accused) Versus1.The State of MaharashtraThrough Police Station Incharge Vimantal Police Station, Nanded Taluka and District Nanded.2.Tarabai w/o Ashok Pandilwad,Age 50 years, Occ: LabourR/o: Guru Nagar, NandedTaluka and District Nanded.… Respondents(R.No.2 Orig. Complainant) 21 APPLN.2754.2023.odt...Mr. Dattatraya Rambhau Markad, Advocate for Applicants.Smt. P. R. Bharaswadkar, APP for Respondent No.1 / State.Mr. Majit Shaikh, h/f Mr. Manoj U. Shelke, Advocates for Respondent No.2....CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :14th August, 2025. Per Court:.Present application has been filed under Section 482 ofCr.P.C. initially for quashing the FIR vide C.R. No.10 of 2023, dated11th January, 2023, registered with Vimantal Police Station, Taluka andDistrict Nanded, and later on, for quashment of the proceedings inR.C.C. No.537 of 2024, pending before the learned Judicial MagistrateFirst Class, Nanded, for the offence punishable under Section 306read with 34 of IPC. 2The fact which is not in dispute as is emerging is thatdeceased Ashwini was married to applicant No.1 – Raju about tenyears prior to the FIR. They are blessed with two daughters aged 9and 6, respectively. Applicant No.2 is the mother of applicant No.1 andapplicant No.4 is his brother. Applicant No.3 has been stated to be thesecond wife of applicant No.1. 3Heard the learned counsel for the applicants and the 31 APPLN.2754.2023.odtlearned APP for respondent No.1 / State as well as the learnedcounsel for respondent No.2. 4The learned counsel for the applicants has taken usthrough the entire charge-sheet and submits that if we consider thepostmortem report, then the opinion as to the probable cause of deathgiven is “consistent with poisoning, however viscera preserved forchemical analysis”. The CA report has been received, which statesthat general and specific chemical testing does not reveal any poisonin viscera samples. The final cause of death after the CA reportappears to have not been taken. Even if we take the prosecution as itis, then it is coming from the statements of the witnesses that since2015, deceased Ashwini was residing with her paternal aunt i.e.separately from applicant No.1. Of-course, then it is stated that at thattime, they were blessed with the elder daughter only, but then thewitnesses have stated that applicant No.1 continued to meet deceasedAshwini either at the place of her paternal aunt or in the house ofrespondent No.2, who is the mother of deceased Ashwini and thensecond daughter was born. As per the FIR, the incident is stated tohave occurred on 2nd January, 2023 around 07:00 pm. The informantstates that applicant No.1 had gone to her house and had calledAshwini there. Thereafter, there was quarrel between applicant No.1and the deceased. Therefore, the informant asked as to why there 41 APPLN.2754.2023.odtwere quarreling. Then applicant No.1 told that he wants to give the TV,which he had given to Ashwini, to his maternal aunt. Then Ashwini toldthat since she had also given part of consideration for purchase of TV,she will not allow the TV to be given to the maternal aunt of applicantNo.1. Then the quarrel continued and thereafter, suddenly Ashwini gotgiddiness and her health started deteriorating. When the informantasked Ashwini, then she told that she consumed poison due to theharassment by the applicants and the husband was pressing for takingback the cases, which she has filed against him. He had broughtdocuments of divorce and had taken her signature forcibly. Accordingto the informant, she herself and her son as well as applicant No.1shifted Ashwini to the government hospital Vazirabad and then shewas shifted to Shankarrao Chavan, Civil Hospital, Vishnupuri. Ashwinisuccumbed on 6th January, 2023. That means only applicant No.1 waspresent at the time of alleged incident as per the story. Otherapplicants were not present at all. The offence punishable underSection 306 of IPC, therefore, cannot be made out as against the otherapplicants. Even as against applicant No.1, it can be stated that hehad not instigated or abetted the commission of suicide. If we considerthe statement of informant’s son Vishal, then he gives a different story.He is not stating that after applicant No.1 had come to their house, hehad called Ashwini. Rather, he gives the sequence that Ashwini camefirst and thereafter, applicant No.1 came and thereafter, they had a 51 APPLN.2754.2023.odtquarrel on account of TV. He states that applicant No.1 took away theTV and alongwith him Ashwini had also gone. He then states thataround 07:00 pm, Ashwini as well as applicant No.1 returned and thenAshwini disclosed that she has consumed poisonous substance asapplicant No.1 has ruined her life. Therefore, it will be unjust to ask allthe applicants to face the trial. 5Learned APP submits that after this Court’s order on 29thJuly, 2025, the opinion has been given by the medical officer i.e. thefinal opinion as “consistent with the poisoning”. The fact is on recordthat there used to be disputes between applicant No.1 and Ashwinafter applicant No.1 had performed second marriage with applicantNo.3. She has filed various proceedings including the proceedingsunder Section 498-A of IPC. As applicant No.1 wanted to get rid ofthose litigations, he was talking sweetly with Ashwini and wanted her toact as he wanted and to give divorce to him. The witnesses have alsosupported the FIR and therefore, this is not a fit case where thepowers under Section 482 of Cr.P.C. can be exercised.6Advocate Mr. Majit Shaikh, holding for Mr. M. U. Shelke,learned counsel for respondent No.2 submits that the application hasbeen filed at a premature stage and when the charge-sheet has beenfiled, let there be trial. 61 APPLN.2754.2023.odt7Before turning to the factual aspects involved, we wouldlike to have a glance at the legal position governing the field in respectof Section 306 of IPC. In order to prove abetment to commit suicide ascontemplated under Section 306 of the Indian Penal Code, theprosecution will have to prove Section 107 of the Indian Penal Code.The law on this point has been summarized by the Honourable ApexCourt in Swamy Prahaladdas Vs. State of M.P. & Anr., 1995 Supp.(3) SCC 438, Mahendra Singh Vs. State of M.P., 1995 Supp. (3)SCC 731, Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC618, Sanju alias Sanjay Singh Sengar Vs. State of MadhyaPradesh, 2002 Cri.L.J. 2796; Chitresh Kumar Chopra Vs. State(Govt. of NCT of Delhi), (2009) 16 SCC 605, Madan Mohan SinghVs. State of Gujrat and another, reported in (2010) 8 SCC 628; S.S.Chheena Vs. Vijay Kumar Mahajan reported in 2010 All MR (Cri)3298 (S.C.)., State of Kerala and others Vs. S. Unnikrishnan Nairand others, reported in AIR 2015 Supreme Court 3351.8 In M. Mohan Vs. State, Represented by the DeputySuperintendent of Police, (2011) 3 SCC 626, the Honourable ApexCourt has observed that, abetment involves a mental process ofinstigating a person or intentionally aiding a person in doing of a thing.Without a positive act on the part of the accused to instigate or aid in 71 APPLN.2754.2023.odtcommitting suicide, conviction cannot be sustained. In order to convicta person under Section 306 of the Indian Penal Code there has to be aclear mens rea to commit the offence. It also requires an active act ordirect act which led the deceased to commit suicide seeing no optionand this act must have been intended to push the deceased into sucha position that he/she committed suicide. It has been further observedthat when there is no proximate link between the suicide and the eventwhen deceased was tortured on some pretext or other, then it does notamount to abetment. 9Now, turning towards the facts, the fact is not in disputethat deceased Ashwini had lodged case under Section 498-A of IPC.The FIR is, in fact, silent about the date, month and year in whichapplicant No.1 allegedly married applicant No.3 and when the offenceunder Section 498-A of IPC was filed by her. It also appears that thedispute was also pending before the Family Court, Nanded, and it isstated that in all four offences were registered. Now, the question is,when so many offences were registered, then what was the necessityfor Ashwini to meet applicant No.1. From the statement of Kalyani,sister of Ashwini, it would show that Ashwini started residing with theinformant in 2015. But the informant says that Ashwini was residingwith her paternal aunt. The sister gives another story further statingthat applicant No.1 had given a rented accommodation to Ashwini near 81 APPLN.2754.2023.odtHanuman Gad, where she resided for about 2-3 months and then wentto reside with paternal aunt. Another sister of Ashwini namely, SoniDutta Dubukwad, is giving another story as to where Ashwini wasresiding. Both the sisters and the brother of Ashwini are stating thatapplicant No.1 was quarreling with Ashwini by saying that the secondchild was not begotten from him. With all these background, whether itwas then probable that in 2023 i.e. on the day on which the incidenttook place, applicant No.1 would have met deceased Ashwini in thehouse of the informant. 10In the FIR, it is absolutely not stated that applicant No.1and Ashwini went outside the house and returned after about half anhour to one hour, as claimed by another eye-witness i.e. Vishal. Theinvestigating officer appears to have not found any bottle or substance,which can be said to be poisonous in nature and from the copies of themedical papers, which he has collected now, after the order waspassed by this Court, would show that the history that was given wasconsumption of rat-killing substance. However, as aforesaid, the CAreport gives the result of the analysis that general and specificchemical testing does not reveal any poison. The viscera was sent forthe analysis. Still, now the final opinion that has been given is that it is“consistent with the analysis”. 91 APPLN.2754.2023.odt11Even if for the sake of argument, we accept that Ashwinihad committed suicide, though as aforesaid it is also in question, yetfact is that Ashwini has expired. Unless it is the evidence on recordthat it was forcibly administered, it cannot be said to be sufficientenough to array the applicants as accused in any other Section of IPC.The FIR contains the oral dying declaration stating that due to theharassment, Ashwini has consumed the poisonous substance. Evensister Kalyani states that Ashwini had given phone call around 07:00pm on the mobile of paternal aunt and told that she has consumedpoisonous substance. Brother Vishal also states about oral dyingdeclaration. Of-course, his theory is that Ashwini consumed it outsidethe house and then after returning to his house, she told it accordinglyto him. That oral dying declaration was not in the form of forcibleadministration by applicant No.1. Therefore, in order to prove theoffence under Section 306 of IPC when the active role or active part isnecessary, that is missing here. 12The incident is stated to have taken place around 07:00pm on 2nd January, 2023 and immediately Ashwini was taken toGovernment Hospital, Vazirabad. The history that was given at thesaid hospital appears to have not been collected and not forming partof the charge-sheet. Shifting of Ashwini to Civil Hospital, Nanded,appears to be on the same day around 11:20 pm and now the medical 101 APPLN.2754.2023.odtcase record has been collected, however, we are unable to get fromthat record also that the history was taken. But if we consider thestatements of witnesses, then Ashwini had given a telephone call alsothat means she was in a position to speak. Then the question is whyher dying declaration was not recorded ? When this question wasasked, the investigating officer, who is present before this Court,places a copy of General Diary Entry taken at 00.46 hours on 3rdJanuary, 2023, stating that A.S.I. Lokhande, who appears to be on dutyat the hospital, had gone to record the dying declaration of Ashwini.But she told that her mental condition is not proper and therefore, sheis unable to give the statement. But arrangements were made forrecording it on the next day. But no such statement appears to havebeen attempted to be recorded. This shows the lethargy on the part ofthe police officers, who were on duty. When a medico legal case isreported, then there should be attempt by them to take the statementsof the injured / persons, who are in the expectation of death, if they areable to give the statements. Again we may refer the statement ofsister of Ashwini, namely Kalyani, who rather states that when thepolice from Vimantal Police Station had come to record the statement,then Ashwini told that it was dispute between the husband and wifeand she consumed poisonous substance. If this statement would havebeen given then it is rather against the prosecution. Merely becausethere is a dispute between the husband and wife, the consumption of 111 APPLN.2754.2023.odtpoisonous substance will not amount to abetment to commit suicide, ifthere is consumption of poisonous substance. 13Thus, it can be seen that though there were disputesbetween applicant No.1 and Ashwini and the litigations were filed byAshwini against him, right from 2018, there was then no proximity ofthose disputes or acts on 2nd January, 2023. The immediate dispute,as narrated, is on the point of taking TV. That cannot be the ground,which can be said to be triggering the abetment or cause forconsumption of poisonous substance. Therefore, even againstapplicant No.1, the ingredients of offence under Section 306 of IPC arenot getting attracted. It would be an abuse of the process of law if theapplicants are asked to face the trial and therefore, this is a fit case forexercise of powers under Section 482 of Cr.P.C., as it is befitting in theguidelines laid down in State of Haryana and Ors Vs. Ch. Bhajan Laland Ors, reported in, AIR 1992 SCC 335. Hence, we pass thefollowing order:-O R D E RI.The application stands allowed.II.The proceedings in R.C.C. No.537 of 2024, pendingbefore the learned Judicial Magistrate First Class,Nanded, and the Sessions Case, if any, if the case is 121 APPLN.2754.2023.odtcommitted to the Court of Sessions, arising out of FIRvide C.R. No.10 of 2023, dated 11th January, 2023,registered with Vimantal Police Station, Taluka andDistrict Nanded, for the offence punishable underSection 306 read with 34 of the IPC, stands quashedand set aside as against all the applicants. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ]nga