Bombay High Court
Smt. Bhavana Wd/O Sonu Parkhe vs State Of Maharashtra, Thr. P.S.O. ... on 7 December, 2016
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.55 OF 2016
Smt. Bhavana wd/o Sonu Parkhe,
aged 24 years, occupation : Nil,
r/o Arni, Taluq Arni, District
Yavatmal. ... Applicant
- Versus -
State of Maharashtra, through its
Police Station Officer, Sadar
Police Station, Nagpur. ... Non-applicant
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Shri Anil S. Mardikar, Senior Advocate with Shri S.G. Joshi, Advocate for
applicant.
Shri H.R. Dhumale, Additional Public Prosecutor for non-applicant.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : DECEMBER 07, 2016
ORAL JUDGMENT :
Admit. Heard finally by consent of Shri Mardikar, learned
Senior Counsel for applicant and Shri Dhumale, learned Additional Public
Prosecutor for non-applicant.
2) By this revision, applicant has challenged order dated
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1/12/2016 passed by learned Assistant Sessions Judge, Nagpur rejecting
her application for discharge from Crime No.382/2014 registered by
Police Station, Sadar, Nagpur for the offence punishable under Section
306 read with Section 34 of Indian Penal Code, out of which Sessions
Case No.369/2015 arises.
3) It is the specific case of applicant that she is in no way
responsible for death of her husband Sonu, who, for the reason best
known to him, has committed suicide. In fact, applicant having been
recently married with Sonu, was happily living with him and as such,
there was no reason for her to indulge into illicit relations.
4) Shri Mardikar, learned Senior Counsel for applicant, has
submitted that even if the case of prosecution of applicant having indulged
into illicit relations with her alleged paramour Pradeep Mohe is admitted
as it is and by going a step further, it is admitted that out of said illicit
relations, applicant was pregnant, which pregnancy she terminated, there
is nothing on record to establish that act of deceased Sonu committing
suicide on 29/9/2014 is direct outcome of abetment or instigation by
applicant to deceased Sonu in any manner. In support of his submissions,
learned Senior Counsel has relied upon the judgment of the Hon'ble Apex
Court in Criminal Appeal Nos.1138-1139 of 2016 - K.V. Prakash Babu
vs. State of Karnataka, judgment of Division Bench of this Court in
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Binod s/o Ratan Sarkar and others vs. The State of Maharashtra and
another (2014 ALL MR (Cri) 1216) and judgment of this Court in
Criminal Revision Application No.207/2010 - Shaikh Nasir Shaikh
Nazir and another vs. State of Maharashtra. Relying on above
referred legal pronouncement, it is submitted that revision may be allowed
by discharging applicant from Crime No.382/2014 registered by Police
Station, Sadar, Nagpur, out of which Sessions Case No.369/2015 arises.
5)
Shri Dhumale, learned Additional Public Prosecutor for non-
applicant, submits that on 11/5/21014, applicant was married to
deceased Sonu, who was working in Police Department and on 29/9/2014
committed suicide by gun-shot while on duty. It is contended that during
the course of investigation, one suicide note was recovered from pocket of
deceased Sonu wherein he stated about illicit relations of his wife, i.e.
applicant with co-accused Pradeep Mohe and that she was carrying
pregnancy due to such illicit relations. It is further contended that during
the course of investigation, statements of mother, sister and sister-in-law
of deceased Sonu came to be recorded wherein they also implicated
applicant having illicit relations with her paramour Pradeep Mohe. It is
submitted that during the course of further investigation, when applicant
was found carrying pregnancy and before her DNA test could be
conducted to ascertain father of child, applicant terminated her
pregnancy without knowledge of her family members. Thus, it is the case
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of prosecution that from the documents filed with the charge-sheet, it is
established that applicant having been married to deceased Sonu, during
his life time, developed illicit relations with Pradeep Mohe and was
pregnant due to such illicit relations and when Investigating Authorities
wanted her to undergo DNA test to ascertain status of Pradeep Mohe, if he
was father of child in her womb, she terminated her pregnancy. This fact
itself establishes involvement of applicant, due to which, her husband
Sonu committed suicide.
6) It is pointed out by learned Additional Public Prosecutor that
before filing this application, applicant had initially filed application
before Division Bench of this Court for quashing of first information
report, which by order dated 2/7/2015 passed by this Court was disposed
of without observing anything on merits, granting liberty to applicant to
take recourse to alternate remedy available in law before competent
Court.
7) Having considered facts as aforesaid, it is material to note that
applicant along with co-accused - alleged paramour of applicant, are
charge-sheeted for the offence punishable under Section 306 read with
Section 34 of Indian Penal Code. In the entire charge-sheet, there is
nothing on record to establish that immediately prior to deceased Sonu
committing suicide on 29/9/2014, applicant had in any manner abetted
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commission of suicide.
8) By now, law on this aspect is well settled. The Hon'ble Apex
Court in para 19 of its judgment in the case of K.V. Prakash Babu (cited
supra) has observed thus :
"We intend to make it clear that if the husband gets involved
in an extra-marital affair that may not in all circumstances
invite conviction under Section 306 of the IPC, but definitely
that can be a ground for divorce or other reliefs in a
matrimonial dispute under other enactments."
It is also observed by the Hon'ble Apex Court that in the case involving
offence under Section 306 of Indian Penal Code, the seed of suspicion
planted in mind brought the eventual tragedy. But such an event will not
constitute the offence or establish the guilt of the accused under
Section 306 of Indian Penal Code.
9) In the case in hand, as already aforesaid, though case of
prosecution is accepted as it is, documents at the most would establish
applicant having illicit relations with her paramour and of her being
pregnant out of such relations, but by no stretch of imagination, it can be
said that due to such relations, deceased Sonu committed suicide. The
Division Bench of this Court (of which P.N. Deshmukh, J. was a member),
in the case of Binod s/o Ratan Sarkar and others (cited supra), in
similar set of circumstances, has considered the concept of abetment, in
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the context of abetment of suicide punishable under Section 306 of Indian
Penal Code. Similarly, this Court in the case of Shaikh Nasir Shaikh
Naziar and another (cited supra) has considered the concept of abetment
and has observed thus :
"9) The law relating to "abetment" is found in Chapter V of
the Indian Penal Code. Section 107 of the Indian Penal Code reads
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 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 willful
misrepresentation, or by willful 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 that thing.
Illustration
A, a public Officer, is authorised by a warrant from a Court
of Justice to apprehend Z. B, knowing that fact and also
that C is not Z, willfully represents to A that C is Z and
thereby intentionally causes A to apprehend C. Here
abets by instigation the apprehension of C.
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 facilitates the
commission thereof, is said to aid the doing of that act.
Section 108 of the Indian Penal Code defines "abettor". It
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reads as under :
108. Abettor A person abets an offence, who abets either
the commission of an offence, or the commission of an act
which would be an offence, if committed by a person
capable by law of committing an offence with the same
intention or knowledge as that of the abettor."
"11) The concept of `abetment' in the context of abetment of
suicide, which is punishable under Section 306 of Indian Penal
Code, is discussed by the Apex Court in the case of Sanju alias
Sanjay Singh Sengar vs. State of Madhya Pradesh (2002 Criminal
Law Journal 2796). In the reported decision, the Supreme Court of
India extensively dealt with the concept of `abetment' in the context
of the offence punishable under Section 306 of the Indian Penal
Code. In that case, the allegation against the accused-appellant
before the Supreme Court was that he had abetted the commission
of suicide of his sister's husband - one Chander Bushan. The facts
appearing in the reported judgment show that there were
matrimonial disputes between Neelam - sister of the
appellant/accused - and her husband and that, in connection with
these disputes, the appellant had allegedly threatened and abused
the said Chander Bhushan. Chander Bhushan committed suicide
and the suicide was attributed by the prosecution to the quarrel that
had taken place between the appellant and the said Chander
Bhushan, a day prior. It was alleged that the appellant had used
abusive language against said Chander Bhushan and had told him
"to go and die". The appellant, who had been charge-sheeted for an
offence punishable under Section 306 of the Indian Penal Code, filed
a petition under Section 482 of the Code of Criminal Procedure, for
quashing the proceedings against him, but his petition was dismissed
by the High Court. The petitioner had, therefore, appealed to the
Supreme Court. While allowing the appeal, Their Lordships of the
Supreme Court, inter alia, observed as follows :
"Even if we accept the prosecution story that the appellant did
tell the deceased to go and die', that itself does not constitute
the ingredient of `instigation'. The word `instigate' denotes
incitement or urging to do some drastic or inadvisable action or
to stimulate or incite. Presence of mens rea, therefore, is the
necessary concomitant of instigation." (para 13 of the reported
judgment)."
12) In the light of above facts and settled legal position, it is
noted that even if a person would commit suicide because of certain
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acts of the applicants/accused, the accused cannot be said to have
committed abetment of suicide by the deceased unless the accused
would intend, while causing such acts to the victim, that he/she
should commit suicide. As such, it is necessary for the prosecution
to establish that by his acts, the applicants/accused could reasonably
foresee that because of his conduct, the victim was almost certain or
at least, quite likely to commit suicide. Unless this is established, a
person cannot be charged of having abetted commission of suicide,
even if, suicide has been committed as a result of some of the acts
committed by the accused.
In the case of Sanju (supra), it is seen that even in the case
where the accused had uttered words such as "go and die" in
abusive and humiliating language which, allegedly led to
committing of suicide, it was held that it would not amount to
instigation and consequently, there would be no offence of abetment
of suicide."
10) In the application in hand, there is no evidence to establish
that on the date of incident or prior to deceased Sonu committing suicide,
applicant had instigated or abetted deceased Sonu to commit suicide. In
that view of the matter, applicant cannot be attributed to have requisite
mens rea so as to hold her guilty as abettor, which apparently appears to
be a fundamental defect in the case of prosecution and eventually does
not attract provisions of Section 306 of Indian Penal Code.
11) In the circumstances, criminal revision application is liable to
be allowed as per order below :
The impugned order dated 1/2/2016 passed by learned
Assistant Sessions Judge, Nagpur in Sessions Case No.369/2015
is quashed and set aside. Applicant stands discharged from the offence
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punishable under Section 306 read with Section 34 of Indian Penal Code,
out of which Sessions Case No.369/2015 arises.
The criminal revision application is accordingly allowed. No
order as to costs.
JUDGE
khj
