High Court

Legal Reasoning

(1) 931-appln-2815-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2815 OF 2021Poonam Vaibhav Aher Age. 31 Yrs., Occu. Household, R/o. Takli, Tq. Kannad, Dist. Aurangabad...ApplicantVersus1.The State of MaharashtraThrough P.I., Gangapur Police Station, Tq. Gangapur, Dist. Aurangabad 2.Dipak Bala ChavanAge- 47 yrs Occ- Agri, R/o Mungsapur, Tal. Kannad, Dist Aurangabad...Respondents...Ms. Sakshi Ajit Kale, Advocate for Applicant.Mr. A. R. Kale, APP for Respondent No.1.Mr. Y. D. Kale, Advocate for Respondent No.2.... CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 10th SEPTEMBER, 2024.P.C. 1.The present application has been filed under Section 482 ofthe Criminal Procedure Code initially for quashing FIR vide CrimeNo.393/2021 dated 18.10.2021 registered with Gangapur PoliceStation, Tq. Gangapur, Dist. Aurangabad and by way ofamendment quashing of charge-sheet i.e. proceeding in R.C.C.No.60/2022 for offences punishable under Sections 306, 498-A, 323,506 r/w 34 of the Indian Penal Code.2.Heard Ms. Sakshi Kale, learned Advocate for the applicant,Mr. A. R. Kale, learned APP for the respondent no.1 and Mr. Y. D.Kale, learned Advocate for respondent no.2.3.The present applicant is married sister-in-law of deceasedPrachi. The respondent no.2 is father of deceased Prachi. The (2) 931-appln-2815-2021.odtPrachi was married to one Nilesh Bhagchand Nigote (brother ofpresent applicant) in 2016. It appears from the contents of the FIRas well as statement of witnesses that prior to the marriagebetween Prachi and Nilesh, the present applicant was married andshe was residing at Takali, Tq. Kannad, Dist. Aurangabad with herfamily.4.The contents of FIR would disclose that accidental death wasreported on 17.10.2021 in respect of Prachi. Her dead body wasfound in well belonging to her father-in-law i.e. situated in the fieldof father-in-law. The inquest panchanama was prepared and thepostmortem has been carried out between 10.00 am to 10.45 am on18.10.2021. The cause of death is death due to drowning. On18.10.2021 itself FIR has been lodged by father of the deceased andat the time of registration of the same it was under Section 306 r/w34 of the Indian Penal Code.5.We are now concerned only in respect of applicant, who ismarried sister-in-law. As regards the allegations against her, it isstated “ त्यानंतरप्राचीजेव्हाजेव्हाआमचेगावीमुंगसापूरयेथेआल्यावर सांगायचीकी, तितचीननंदपुनमवैभवअहेररा. टाकळी, ता. कन्नडहिहचेसांगणेवरुनसासु, सासरे, पतित, हिदरहेप्राचीलापैशाचीमागणीकरुनमारहाणकरीतआहेत.”.Even in the statements of witnesses, same sentences have beenrepeated. None of them has given details. When the marriage hadtaken place in 2016 and death had occurred on 17.10.2021, thenatleast in respect of abatement to commit suicide the details oughtto have been given. The above said statement will not even attractSection 498-A of the Indian Penal Code, as above statement isvague and it amounts to omnibus allegation. How much amountwas demanded, for what purpose is not clarified. Therefore, it willnot attract definition of cruelty, as explained in Explanation (A)and Explanation (B) of Section 498-A of the Indian Penal Code. (3) 931-appln-2815-2021.odtFurther, there is absolutely no evidence in entire charge-sheet thatthe present applicant had met Prachi just before unfortunateincident. In fact, we are not going into the details as to whetherthe death was confirmed suicide or not, because when the death isby the drowning, it is for the prosecution to rule out possibility ofaccidental death as well as homicidal death in order to proveoffence under Section 306 of the Indian Penal Code. Further, asregards Section 306 of the Indian Penal Code is concerned, it willhave to be read alongwith Section 107 of the Indian Penal Code.6.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 necessaryfor the prosecution to at least prima facie establish that theaccused had an intention to aid or instigate or abet the deceased tocommit suicide and in the absence of availability of such material,the accused cannot be compelled to face trial for the offencepunishable under Section 306 of the Indian Penal Code. We wouldlike to reproduce Paragraph Nos. 11 to 18 of the said decision:-“11. The law as to what are the requirements toconstitute an offence punishable under Section 306 of theIPC is no more res integra. The law is very wellcrystalized by the Hon'ble Apex Court in the catena ofcases including in the cases of Sanju alias SanjaySingh Sengar vs. State of Madhya Pradesh, reportedin 2002 Cri.L.J. 2796; Madan Mohan Singh vs. Stateof Gujrat and another, reported in (2010) 8 SCC 628;and in the case of S.S. Chheena vs. Vijay KumarMahajan reported in 2010 All MR (Cri) 3298 (S.C.). (4) 931-appln-2815-2021.odt12. In the case of Sanju @ Sanjay Sengar cited supra,the appellant before the Apex Court was the brother ofNeelam wife of deceased Chander Bhushan @ Babloo. Itwas the prosecution case that after marriage of Neelamwith the deceased, there was continuous ill-treatment bythe deceased and his family members to Neelam. As suchshe had gone to her parents house and started living withher brother, the appellant before the Apex Court. Abouttwo months prior to the incident, the appellant advisedthe deceased to take his sister back to her matrimonialhouse and treat her properly. It was the prosecution casethat on 25th July, 1998, the appellant visited the place ofthe parents of the deceased and pleaded with them thathis sister should be rehabilitated in the matrimonialhome and should not be physically ill-treated or harassed.It was also the prosecution case that on that day theappellant also said to have threatened the parents of thedeceased that if they do not mend their behaviourtowards his sister, he would be compelled to resort tofiling a complaint under Section 498-A of the IndianPenal Code. On this, the parents of the deceasedexpressed helplessness. It was the further prosecutioncase that the parents of the deceased informed thedeceased about the same. He went to the house of parentsof the appellant, where quarrel took place between them.Therefore, the deceased returned alone and told hisbrothers and other acquaintances that the appellant hadthreatened and abused him by using filthy words. On thenext date i.e. on 27th July, 1998, the deceased was foundhanging with a rope by neck on the raft of his house andhe was found dead. A suicide note was left by the (5) 931-appln-2815-2021.odtdeceased. On the basis of the said suicide note, thecharge-sheet was filed against said Sanju alias SanjaySengar . A petition challenging filing of charge-sheet wasfiled before the High Court under Section 482 of the Codeof Criminal Procedure. The same was rejected. Hence,said Sanju alias Sanjay Sengar approached the Hon'bleApex Court.13. The Apex Court in Sanju @ Sanjay Sengar’s caseconsidered the earlier judgments in paragraphs 9 to 12 ofthe said judgment. It would be appropriate to refer to thesame - "9. In Swamy Prahaladdas v. State of M.P. &Anr. , 1995 Supp. (3) SCC 438, the appellant wascharged for an offence under Section 306 I.P.C. onthe ground that the appellant during the quarrel issaid to have remarked the deceased 'to go and die' .This Court was of the view that mere words utteredby the accused to the deceased 'to go and die' werenot even prima facie enough to instigate the deceasedto commit suicide.10. In Mahendra Singh vs. State of M.P., 1995Supp.(3) SCC 731, the appellant was charged for anoffence under Section 306 I.P.C basically based uponthe dying declaration of the deceased, which reads asunder:"My mother-in-law and husband and sister-in-law(husband's elder brother's wife) harassed me. Theybeat me and abused me. My husband Mahendrawants to marry a second time. He has illicitconnections with my sister-in-law. Because of those (6) 931-appln-2815-2021.odtreasons and being harassed I want to die byburning."11. This Court, considering the definition of'abetment' under Section 107 I.P.C., found that thecharge and conviction of the appellant for an offenceunder Section 306 is not sustainable merely on theallegation of harassment to the deceased. This Courtfurther held that neither of the ingredients ofabetment are attracted on the statement of thedeceased.12. In Ramesh Kumar vs. State of Chhattisgarh(2001) 9 SCC 618, this Court while considering thecharge framed and the conviction for an offenceunder Section 306 I.P.C. on the basis of dyingdeclaration recorded by an Executive Magistrate, inwhich she had stated that previously there had beenquarrel between the deceased and her husband andon the day of occurrence she had a quarrel with herhusband who had said that she could go wherevershe wanted to go and that thereafter she had pouredkerosene on herself and had set fire. Acquitting theaccused this Court said :"A word uttered in a fit of anger or emotion withoutintending the consequences to actually follow cannotbe said to be instigation. If it transpires to the courtthat a victim committing suicide was hypersensitiveto ordinary petulance, discord and difference indomestic life quite common to the society to whichthe victim belonged and such petulance, discord and (7) 931-appln-2815-2021.odtdifference were not expected to induce a similarlycircumstanced individual in a given society tocommit suicide, the conscience of the court shouldnot be satisfied for basing a finding that the accusedcharged for abetting the offence of suicide should befound guilty."14.After considering the earlier judgments, TheirLordships observed thus at paragraph 13 -"13. .......... It is in a fit of anger and emotional.Secondly, the alleged abusive words, said to havebeen told to the deceased were on 25th July, 1998ensued by quarrel. The deceased was found hangingon 27th July, 1998. Assuming that the deceased hadtaken the abusive language seriously, he had enoughtime in between to think over and reflect and,therefore, it cannot be said that the abusivelanguage, which had been used by the appellant on25th July, 1998 drived the deceased to commitsuicide. Suicide by the deceased on 27th July, 1998 isnot proximate to the abusive language uttered by theappellant on 25th July, 1998. The fact that thedeceased committed suicide on 27th July, 1998 woulditself clearly pointed out that it is not the directresult of the quarrel taken place on 25th July, 1998when it is alleged that the appellant had used theabusive language and also told the deceased to go anddie. This fact had escaped notice of the courts below.”15.Their Lordships of the Apex Court further havereproduced the suicide note in the said case in paragraph (8) 931-appln-2815-2021.odt14 of the judgment, wherein Sanjay Sengar was directlyimplicated to be the person responsible for suicide of thedeceased. After reproducing the said suicide note, TheirLordships observed thus at paragraph 15 -"15. ........ The prosecution story, if believed, showsthat the quarrel between the deceased and theappellant had taken place on 25th July, 1998 and ifthe deceased came back to the house again on 26thJuly, 1998, it cannot be said that the suicide by thedeceased was the direct result of the quarrel thathad taken pace on 25th July, 1998. Viewed from theaforesaid circumstances independently, we areclearly of the view that the ingredients of 'abetment'are totally absent in the instant case for an offenceunder Section 306 I.P.C. ....…"After these observations, Their Lordships allowed theappeal and quashed and set aside the charge-sheet.16.In the case of Madan Mohan Singh, [2010 ALLMR (Cri) 3245 (S.C.)] (cited supra), the petitioner wasworking as a DET in Bharat Sanchar Nigam Ltd. Thedeceased i.e. Deepakbhai Krishnalal Joshi has committedsuicide. On the basis of complaint filed by his wife, anFIR came to be registered. The petitioner had applied fordischarge. The trial Court rejected it. The Gujarat HighCourt upheld the order of the trial Judge. Beingaggrieved thereby the petitioner has approached theApex Court. The prosecution heavily relied on the suicidenote of the deceased wherein it was stated that thepetitioner was responsible for his death. The Apex Court (9) 931-appln-2815-2021.odtnegating the contention on behalf of prosecution observedthus:-"10. We are convinced that there is absolutelynothing in this suicide note or the FIR which wouldeven distantly be viewed as an offence much lessunder Section 306 IPC. We could not find anything inthe FIR or in the so-called suicide note which couldbe suggested as abetment to commit suicide. In suchmatters there must be an allegation that the accusedhad instigated the deceased to commit suicide orsecondly, had engaged with some other person in aconspiracy and lastly, that the accused had in anyway aided any act or illegal omission to bring aboutthe suicide.11. In spite of our best efforts and microscopicexamination of the suicide note and the FIR, all thatwe find is that the suicide note is a rhetoricdocument in the nature of a departmental complaint.It also suggests some mental imbalance on the partof the deceased which he himself describes asdepression. In the so- called suicide note, it cannot besaid that the accused even intended that the driverunder him should commit suicide or should end hislife and did anything in that behalf. Even if it isaccepted that the accused changed the duty of thedriver or that the accused asked him not to take thekeys of the car and to keep the keys of the car in theoffice itself, it does not mean that the accusedintended or knew that the driver should commitsuicide because of this. (10) 931-appln-2815-2021.odt12. In order to bring out an offence under Section 306IPC specific abetment as contemplated by Section107 IPC on the part of the accused with an intentionto bring about the suicide of the person concerned asa result of that abetment is required. The intentionof the accused to aid or to instigate or to abet thedeceased to commit suicide is a must for thisparticular offence under Section 306 IPC. We are ofthe clear opinion that there is no question of therebeing any material for offence under Section 306 IPCeither in the FIR or in the so-called suicide note.13. It is absurd to even think that a superior officerlike the appellant would intend to bring aboutsuicide of his driver and, therefore, abet the offence.In fact, there is no nexus between the so-calledsuicide (if at all it is one for which also there is nomaterial on record) and any of the alleged acts on thepart of the appellant. There is no proximity either. Inthe prosecution under Section 306 IPC, much morematerial is required. The courts have to be extremelycareful as the main person is not available for cross-examination by the appellant-accused. Unless,therefore, there is specific allegation and material ofdefinite nature (not imaginary or inferential one), itwould be hazardous to ask the appellant- accused toface the trial. A criminal trial is not exactly apleasant experience. The person like the appellant inthe present case who is serving in a responsible postwould certainly suffer great prejudice, were he toface prosecution on absurd allegations of irrelevant (11) 931-appln-2815-2021.odtnature. In the similar circumstances, as reported inNetai Duta v. State of W.B., this Court had quashedthe proceedings initiated against the accused.14. As regards the suicide note, which is a documentof about 15 pages, all that we can say is that it is ananguish expressed by the driver who felt that hisboss (the accused) had wronged him. The suicide noteand the FIR do not impress us at all. They cannot bedepicted as expressing anything intentional on thepart of the accused that the deceased might commitsuicide. If the prosecutions are allowed to continueon such basis, it will be difficult for every superiorofficer even to work." (emphasis supplied)17.In case of S.S.Cheena (cited supra) , there was adispute between one Saurav Mahajan, who was a finalyear student of Law Department and Harminder Singh, afellow student of the same class with regard to the theft ofa mobile phone. This came to the notice of M.D.Singh, thethen Head of the Law Department who asked both thestudents to submit their versions of the incident inwriting. The deceased and Harminder gave their versionsand, thereafter, M.D.Singh forwarded their versions tothe University authorities for taking necessary action. Aninquiry was conducted on 13th October 2003 by theSecurity Officer of the University Shri S.S.Chheena.During the course of inquiry, on 17th October 2003,Saurav Mahajan committed suicide by jumping in front ofthe train. A suicide note was seized from the the pocket ofthe deceased. On the complaint of father of the deceased,an offence under Section 306 of I.P.C. was registered (12) 931-appln-2815-2021.odtagainst Harminder Singh. During the course of trial,S.S.Cheena was also impleaded as accused. Beingaggrieved by the framing of charge, S.S.Cheenaapproached the High Court. The High Court refused tointerfere. Being aggrieved thereby, said S.S.Cheenaapproached the Supreme Court. The Apex Court observedthus:"27. This Court in Chitresh Kumar Chopra v.State (Govt. of NCT of Delhi) (2009) 16 SCC 605had an occasion to deal with this aspect of abetment.The Court dealt with the dictionary meaning of thewords "instigation" and "goading". The Court opinedthat there should be intention to provoke, incite orencourage the doing of an act by the latter. Eachperson's suicidability pattern is different from theother. Each person has his own idea of self-esteemand self-respect. Therefore, it is impossible to laydown any straitjacket formula in dealing with suchcases. Each case has to be decided on the basis of itsown facts and circumstances.28. Abetment involves a mental process of instigatinga person or intentionally aiding a person in doing of athing. Without a positive act on the part of theaccused to instigate or aid in committing suicide,conviction cannot be sustained. The intention of thelegislature and the ratio of the cases decided by thisCourt is clear that in order to convict a person underSection 306 IPC there has to be a clear mens rea tocommit the offence. It also requires an active act ordirect act which led the deceased to commit suicide (13) 931-appln-2815-2021.odtseeing no option and that act must have beenintended to push the deceased into such a positionthat he committed suicide.29. In the instant case, the deceased wasundoubtedly hypersensitive to ordinary petulance,discord and differences which happen in our day-to-day life. Human sensitivity of each individual differsfrom the other. Different people behave differently inthe same situation.30. When we carefully scrutinize and criticallyexamine the facts of this case in the light of thesettled legal position the conclusion becomes obviousthat no conviction can be legally sustained withoutany credible evidence or material on record againstthe appellant. The order of framing a charge underSection 306 IPC against the appellant is palpablyerroneous and unsustainable. It would be criminaltravesty of justice to compel the appellant to face atrial without any credible material whatsoever.Consequently, the order of framing charge underSection 306 IPC against the appellant is quashedand all proceedings pending against him are also setaside." (emphasis supplied)18.Recently, in the case of State of Kerala andothers vs. S. Unnikrishnan Nair and others, reportedin AIR 2015 Supreme Court 3351 : [2015 ALL SCR2824], Their Lordships had an occasion to consider asimilar case. In the said case, the Chief InvestigatingOfficer had committed suicide pending investigation in a (14) 931-appln-2815-2021.odtmurder case. In the suicide note, it was alleged that twoof his subordinates were responsible for his this situation.There were some allegations against one Advocate andthe Chief Judicial Magistrate. The First InformationReport came to be lodged against the subordinate officers.They filed a petition under Section 482 of the CriminalProcedure Code. The Kerala High Court quashed theFirst Information Report. Being aggrieved thereby, theState went in appeal before the Hon'ble Apex Court.While dismissing the appeal, the Their Lordships of theApex Court observed thus :“13. As we find from the narration of facts and thematerial brought on record in the case at hand, it isthe suicide note which forms the fulcrum of theallegations and for proper appreciation of the same,we have reproduced it herein-before. On a plainreading of the same, it is difficult to hold that therehas been any abetment by the respondents. note,except saying that the the respondents Thecompelled him to do everything and cheated him andput him in deep trouble, contains nothing else. Therespondents were inferior in rank and it is surprisingthat such a thing could happen. That apart, theallegation is really vague. It also baffles reasons, forthe department had made him the head of theinvestigating team and the High Court had reposedcomplete faith in him and granted him the liberty tomove the court, in such a situation, there was nowarrant to feel cheated and to be put in trouble bythe officers belonging to the lower rank. That apart,he has also put the blame on the Chief Judicial (15) 931-appln-2815-2021.odtMagistrate by stating that he had put pressure onhim. He has also made the allegation against theAdvocate." 7.Thus taking into consideration the legal position as well ascontents of the FIR, none of the offences are attracted against theapplicant and, therefore, this is a fit case as it is within theparameters laid down in case of State of Haryana and Ors. Vs.Ch. Bhajan Lal and Ors., AIR 1992 SC 604 to exercise ourinherent powers under Section 482 of the Criminal ProcedureCode. Hence, following order:ORDERa.Criminal Application is allowed.b.The FIR in vide Crime No.393/2021 dated 18.10.2021registered with Gangapur Police Station, Tq. Gangapur, Dist.Aurangabad and charge-sheet i.e. proceeding in R.C.C. No.60/2022for offences punishable under Sections 306, 498-A, 323, 506 r/w 34of the Indian Penal Code and Sessions Case, if any, in case, thecase is committed to the Court of Sessions stand quashed and setaside as against the applicant-Poonam Vaibhav Aher.c.Criminal Application is disposed of.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/September-2024