Bapurao S/O Kisanrao Jamgade And ... vs State Of Maharashtra
2003 Latest Caselaw 22 Bom

JUDGMENT

R.S. Mohite, J.

1. This is an appeal filed by the appellants for quashing and setting aside a judgment and order passed by the Additional Sessions Judge, Pusad in Sessions Trial No. 18 of 1997 whereby the appellants have been held guilty and convicted for an offence punishable under Section 306 read with Section 34 of the Indian Penal Code and each of the accused has been sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs. 10,000/-, in default to suffer further rigorous imprisonment of six months.

2. The brief facts of the case as have emerged from the record are as under :

(A) That the deceased Prakash Dadarao Patil was the police patil of village Waltur. He was residing in village Waltur along with his wife, P.W.-l Vrushali and three children. He had two brothers by name Sudarshan and Ashok. Ashok was a Police Inspector and was also known as Nanasaheb.

(B) On 30-8-1996 the deceased Prakash and his wife Vrushali had been to village Savana. On the same day, in the evening the deceased Prakash returned to his village Waltur from Savana. His wife Vrushali stayed at night at Savana. She returned to her house at Waltur at about 1.00. p.m., the next day i.e. on 31-8-96. When she returned, she found the door of her house was open, but could not find her husband in the house. She inquired about her husband from the ladies in the village. After sometime, one Asha brought a message that the deceased Prakash was lying dead near the Samadhi of his mother.

(C) On 31-8-1996, one Panjabrao Laxmanrao Patil lodged a report in the police station about Prakash lying dead in the field. On receipt of the report from Panjabrao, P.W.-4 Narayan Jadhao registered a case of an accidental death as per Exh. 42. The said Police Sub Inspector then went for investigation and he prepared a spot panchanama of the incident and inquest panchanama. He seized a total of ten articles from the spot of incident and prepared a seizure panchanama in respect of the articles seized by him. The said seizure panchanama has been exhibited as Exh. 47. Amongst the articles seized by him is alleged to be a suicide note Exh. 45 purported to be written in the handwriting of deceased as per the inquest panchanama, was found in the pocket of the shirt of the deceased, along with other articles.

(D) The Police Sub Inspector then sent the dead-body of Prakash to Pusad Rural Hospital and he proceeded to the house of Prakash where under a separate pancbanama (Exh. 48) he seized several articles, amongst which was a lengthy letter of about five pages purported to be written by Prakash to his elder brother Nanasaheb.

(E) Another article seized by him was an aluminium bottle which was smelling of Endrine, which according to the prosecution was consumed by the deceased for committing suicide.

(F) On 01-9-96 prosecution witness No. 1 Vrushali lodged a complaint at Pusad City Police Station. The F.I.R. lodged by her is at Exh. 37 and on such complaint, Pusad City Police Station registered an offence under Section 306 read with Section 34 of the Indian Penal Code.

(G) The Investigation Officer then sent the Muddemal bottle of insecticide to the Chemical Analyser, Nagpur under his covering letter (Exh. 27). He sent viscera of deceased to the Chemical Analyser, Pune and he sent the two letters written by deceased Prakash Patil and one register purported to be written by him to the Handwriting Expert, Nagpur for his opinion. The Handwriting Expert gave his report and after the receipt of the report and completion of investigation, the Investigating Officer filed the chargesheet.

3. The Sessions Court, to which the trial was committed, framed the charge under Section 406 read with Section 34 of the Indian Penal Code and conducted the trial. In all four witnesses were examined amongst whom are P.W.-l Vrushali, i.e. wife of the deceased who had lodged the F.I.R., P.W.-2 is Kailash Anandrao Yeole, a panch witness of the spot panchanama, inquest panchanama and two seizure panchanamas, P.W.-3 Vinod Dattarao Patil who is formal witness and is a person who has testified to have seen the dead-body of Prakash Patil lying near Samadhi and P.W.-4 N. D. Jadhav, the Investigating Officer in the case. Finally, after recording the statement under Section 313 of Criminal Procedure Code and hearing the parties, the Additional Sessions Judge, Pusad proceeded to pass the impugned judgment and order.

4. I have perused the record. The case of the prosecution mainly rests on the evidence of P.W.-l Vrushali Patil, the letters written by the deceased Prakash, i.e. the letter to his elder brother dated 25-8-96 (Exh. 39) and the suicide note dated 31-8-96 (Exh. 45). The prosecution produced the Handwriting Expert's opinion which was given by the Additional Chief State Examiner of Documents. In his opinion, the Additional Chief State Examiner of Documents opined that the red-encircled writing's marked as Exh. D-l and signature marked as Exh. D-(S) shows similarities when compared with certain documents purported to have been written by the deceased, which indicate their common authorship. Before going to the two letters said to have been written by the deceased, it would be proper to deal with the evidence of P.W.-l Vrushali who in her evidence as well as in the First Information Report has given the reasons as to why according to her deceased Prakash committed suicide.

5. On a conjoint reading of the evidence of P.W.-l Vrushali and her F.I.R., the reasons given by her as to why her husband Prakash had committed suicide can be enumerated as under:-

(i) That, two years before the incident, accused No. 3 Kishor Jamgade had casts allegation regarding theft of cotton against Prakash.

(ii) That, 4-5 months back, the accused had tried to entangle the deceased Prakash Patil in an incident concerning the death of one Anita, who was the daughter in law of the deceased's brother named Narayan and who had died due to burning.

(iii) That, 4-5 months back, on the day prior to Padwa, the present accused had assaulted the deceased. They had beaten him with fist and kick blows and asked him to resign from the post of Police Patil. They had also threatened him that they would commit murder of all the three sons of deceased, if he lodged the report against them, regarding the incident.

(iv) That, 8 days prior to the incident one boy belonging to Mang community had died in the field of the deceased Prakash due to electric current. At that time also the accused persons had threatened Prakash Patil to resign from the post of Police Patil.

6. It is the case of prosecution and the contention of P.W.-l Vrushali that due to the aforesaid incidents, the deceased Prakash felt harassed, and therefore, committed suicide on 31-8-96. The contents of the letter (Exh. 39) purported to be written by the deceased to his brother Nanasaheb was got proved through P.W.-l Vrushali on the footing that she was familiar with the signature and handwriting of the deceased. Reading the contents of this letter would indicate that the deceased wanted to make some grievance about the accused persons to his brother. His main grievance seems to be against the appellant Kishor Jamgade, though there is also general reference to the four incidents referred to by P.W.-l in her evidence. It appeal's that the prosecution wanted to establish that these letters were written and signed by the present deceased and for this purpose, the same had been sent to the Handwriting Expert for examination. However, the prosecution has not examined the Handwriting Expert and opinion of the Handwriting Expert has been exhibited through the evidence of P.W.-4 Narayan Jadhav, the Investigating Officer. At the very outset I may state that though this opinion of the Handwriting Expert is exhibited, in the absence of Handwriting Expert being examined, no value or weightage whatsoever can be given to the mere opinion of the Handwriting Expert in the absence of any oral evidence of the said Expert regarding his own opinion. In this regard, I may refer to the judgment of Apex Court in the case of State of Maharashtra v. Damu Gopinath Shinde, AIR 2000 SC 1691 wherein the question as to whether any reliance can be placed on an opinion of the Handwriting Expert, who was the Assistant State Examiner of Documents, in the absence of his stepping into the witness box was considered. The Apex Court in para 41 has concluded that no such reliance can be placed on such an opinion by holding as under :

"Exh. 64 is only the opinion of the Asst. State Examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of S. 293 of the Code. Hence, without examining the expert as a witness in Court, no reliance can be placed on Exh. 64 alone."

The said two documents said to have been written by the deceased have also been proved by the aid of Section 47 of the Evidence Act through P.W.-l Vrushali, being the wife of the deceased and a person well acquainted and familiar with his handwriting and signature. In her examination in chief, these two documents were put to her and she has categorically stated that they were in the handwriting and signature of her deceased husband Prakash. There is no cross examination on this aspect of her evidence. I am, therefore in agreement with the Trial Court that in the absence of any challenge in the cross examination, both the seizure as well as the fact that these documents were written by the deceased Prakash under his signature, must be held to be proved.

7. The question now arises as to whether the reasons given by the prosecution for the deceased Prakash having committed suicide can fasten the guilt of having committed offence punishable under Section 306 read with Section 34 of the Indian Penal Code upon the present appellants? Before we proceed further, it would be proper to set out the provisions of Section 306 of the Penal Code, which are as under:

Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Since Section 306 deals with the abetment of suicide, it would also be necessary to reproduce Section 107 of the Penal Code which deals with the abetment of a thing, which is as under:

107. Abetment of a thing - A person abets the doing of a thing, who -

First - Instigates any person to do that thing; or

Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1 - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

8. On reading of Section 306 and Section 107 of the Penal Code together, two things are clear; (a) firstly that there must be abetment of the act of the commission of suicide, either by instigation, conspiracy or by giving an intentional aid, and (b) that the act which amounts to abetment must have some reasonable proximity and nexus with the actual commission of the suicide.

9. As regards the first proposition, on query being made, the learned A.P.P. fairly conceded that in the present case there was no act of conspiracy or act of abetment by intentional aiding of the deceased, committed by any of the accused. She, however, contended that the accused had instigated the deceased to commit suicide. In my opinion, the first clause of Section 107 of the Penal Code has to be read in the light of Explanation I to Section 107 which in the present case would require that there be wilful misrepresentation, or wilful concealment of a material fact which a person is bound to disclose, which voluntarily causes the commission of act of suicide. In the present case there is no such material whatsoever. The accused No. 3 is firstly supposed to have made allegation of theft of cotton against Prakash Patil. A perusal of the charge sheet filed in the aforesaid case would indicate that Prakash was not at all the accused. The present appellants were not even the witnesses in the said case. The second allegation against the accused is that about 4 to 5 months ago the accused entangled the deceased Prakash in the case of bride burning. The charge sheet of this case is also on record and it can be seen that in this case also the deceased was not an accused. In fact, he and his brother were the witnesses. None of the accused persons were figured as witnesses in this case. The third allegation is that about 4 to 5 months back the accused has assaulted the deceased and threatened him not to lodge the report and has also given threats relating to the killing of his sons if the report was lodged regarding the incident. In this regard we have only the evidence of P.W.-l Vrushali. She does not claim to be an eye witness to this assault. There is no other corroborative evidence regarding this incident and it would not be safe to accept this evidence particularly as there is also no corroborative documents like a medical report or police complaint.

10. The fourth reason given by the prosecution for committing suicide is that; eight days prior to the incident, one boy from Mang community had died due to electric shock and the deceased Prakash was tried to be entangled by levelling false charge. A perusal of the charge sheet in this case also would indicate that the complainant in that case was the father of the boy who had lodged the report. None of the accused were witnesses in this case and they had nothing to do with this particular case.

11. In my opinion, reasonable proximity of the alleged act of abetment is also required to the actual act of committing suicide. This was also observed by the Apex Court in the case of Sanju @ Sanjay Singh Sengar v. State of M. P. in which it was held that the suicide was not proximate to the quarrel which was a cause of the alleged suicide, though the deceased was named in the suicide note. In that case quarrel had taken place two days prior to the occurrence of commission of suicide.

12. In my opinion, the causes of abetment are hard facts which are required to be proved by the prosecution in accordance with the Evidence Act. A distinction will have to be drawn between such hard facts and an apprehension which a person may harbor in his mind, leading to the Act of suicide. It is not difficult to imagine a situation where the person might have felt harassed when in hard reality there did not exist any real cause therefor. In the present case, I find that the first incident as alleged by the prosecution, is said to have occurred prior to two years, though the charge sheet indicates it is four years' ago. Second incident is 4 to 5 months old and though the last incident is said to have occurred eight days prior to the incident, it is seen that none of the accused involved the deceased Prakash in that case. There is no independent evidence involving the accused in any of these incidents relied upon by the prosecution. In the circumstance, I feel that this is a fit and proper case where the appeal is required to be allowed. I, therefore, quash and set aside the impugned judgment and order passed by the Additional Sessions Judge, Pusad in Sessions Trial No. 18/1997 and acquit the appellants of all charges. The fine, if any, paid by the accused may be refunded to them.