Sau. Sujata W/O Vinod Musale vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 1614 Bom

 CRI. APPEAL NO.100.16.odt                    1



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.100 OF 2016


 Sau. Sujata w/o Vinod Musale,
 Aged about 37 years,
 Occupation-Housewife,
 R/o. Vrundavan Colony,
 Amravati.                                         ..             APPELLANT
                                                                (Complainant)


                               .. VERSUS ..


 1]     The State of Maharashtra,
        Through Police Station Officer,
        Gadge Nagar, Tahsil and District-
        Amravati.

 2]     Arvind Manohar Khandar (Accused),
        Aged 34 years, Occupation-Service,
        R/o. Vrundavan Colony,
        Amravati, District-Amravati.    ..                     RESPONDENTS



                               ..........
 Shri S.S. Shingane, Advocate for Appellant,
 Shri I.J. Damle, APP for Respondent no.1-State,
 Shri M.P. Kariya, Advocate for Respondent no.2.
                               ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 11, 2017.

ORAL JUDGMENT

Leave to amend the prayer clause. Amendment

be carried out forthwith.

2] This appeal takes an exception to the judgment

and order dated 18.11.2015 passed by the learned

Additional Sessions Judge, Amravati in Sessions Trial

No.156/2011 acquitting the accused of the offence

punishable under Section 306 of the Indian Penal Code. For

the sake of convenience, respondent no.2 shall be referred

as accused in his original status as he was referred before

the trial court.

3] Prosecution case which can be revealed from the

charge-sheet and connecting papers thereto may be stated

in brief as under :

(a) Priti Divakar Taywade was resident of

Vrundavan Colony, Amravati. Accused was

residing with his family in front of her house. He

was serving in a private company at Pune. Priti

was taking her education at Aurangabad.

(b) Priti and accused had love affair. On

2.6.2010, both came to Amravati. Accused

promised Priti to marry her. Accused and Priti

developed physical relations. It appears that

parents of accused were against the marriage. It

is alleged that later-on accused refused to marry

Priti as his family members were not ready for

marriage.

(c) On 8.6.2010, accused and his family

members called Priti. They told her that her

marriage with accused is not possible. Thereafter,

Priti consumed poison and fainted in front of the

house of accused. She was taken to Irwin Hospital.

During treatment, she breathed her last.

(d) PW-1 Sujata Musale, sister of Priti, lodged

report. On the basis of report, offence under

Section 306 r/w 34 of the Indian Penal Code was

registered vide Crime No.285/2010 against the

accused and his parents.

(e) PSI Bhoyar (PW-11) took over

investigation. He visited the place of occurrence

and recorded spot panchanama. One bottle lying

on the spot was seized. Inquest panchanama was

drawn. The dead body was sent for postmortem.

Statements of witnesses were recorded. Seized

articles were sent to Chemical Analyser. After

completion of investigation, chargesheet was

submitted to the Judicial Magistrate, First Class,

Amravati, who in turn, committed the case for trial

to the Court of Sessions.

4] As can be seen from the record parents of accused

were discharged. Charge came to be framed against the

accused vide Exh.6. He pleaded not guilty and claimed to be

tried. His defence was of total denial and false implication.

5] Prosecution examined in all 11 witnesses to

substantiate the guilt of the accused. Considering the

evidence of prosecution witnesses and submissions made on

behalf of the parties, trial court came to the conclusion that

charge is not proved against the accused beyond reasonable

doubt and in consequence thereof acquitted the accused of

the offence punishable under section 306 of the Indian Penal

Code. Being aggrieved, complainant Sujata Musale prays

for leave to appeal.

6] Heard Shri Shingane, learned counsel for appellant

and Shri Kariya, learned counsel for respondent no.2-

accused. Shri Damle, learned Additional Public Prosecutor

represents respondent no.1-State. With the assistance of

the learned counsel for the parties, this court has gone

through the evidence of prosecution witnesses.

7] On meticulous evaluations of the evidence on

record and keeping in view well settled law regarding

offence punishable under Section 306 of the Indian Penal

Code, this court for the below reasons is of the view that the

view taken by the trial court is a reasonable and possible

view and appellant has no arguable case on merits.

8] Before adverting to the evidence of complainant

and other witnesses, it would be appropriate to keep in mind

essential ingredients necessary to attract the provisions of

Section 306 of the Indian Penal Code and the settled law in

that regard. The decisions in (i) Dilip Ramrao Shirasao

and others vs. State of Maharashtra and another

[2016 ALL MR (Cri) 4328], (ii) Ramesh Someshwarrao

Tayde and another vs. State of Maharashtra and

another [2016 ALL MR (Cri) 5049 (iii) Sandip Ajay

Wadse and others vs. State of Maharashtra and

another in Criminal Application No.428/2016 and (iv)

Rajendrakumar Bajranglal Sharma and others vs.

State of Maharashtra and another in Criminal

Application No.593/2016 would be of great assistance

here.

9] In Dilip Ramrao Shirasao and others (supra), the

Division Bench of this court, relying upon the catena of

decisions of the Hon'ble Supreme Court, held that it is

necessary for the prosecution to at least prima facie

establish that accused had an intention to aid or instigate or

abet the deceased to commit suicide and in the absence of

availability of such material, accused cannot be compelled

to face trial for the offence punishable under Section 306 of

the Indian Penal Code. It would be appropriate to reproduce

paragraphs 11 to 18 of the said decision here for ready

reference :

"11. The law as to what are the requirements to constitute an offence punishable under Section 306 of the IPC is no more res integra. The law is very well crystalized by the Hon'ble Apex Court in the catena of cases including in the cases of Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh, reported in 2002 Cri.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, the appellant before the Apex Court

was the brother of Neelam wife of deceased Chander Bhushan @ Babloo. It was the prosecution case that after marriage of Neelam with the deceased, there was continuous ill- treatment by the deceased and his family members to Neelam. As such she had gone to her parents house and started living with her brother, the appellant before the Apex Court. About two months prior to the incident, the appellant advised the deceased to take his sister back to her matrimonial house and treat her properly. It was the prosecution case that on 25 th July, 1998, the appellant visited the place of the parents of the deceased and pleaded with them that his sister should be rehabilitated in the matrimonial home and should not be physically ill-treated or harassed. It was also the prosecution case that on that day the appellant also said to have threatened the parents of the deceased that if they do not mend their behaviour towards his sister, he would be compelled to resort to filing a complaint under Section 498-A of the Indian Penal Code. On this, the parents of the deceased expressed helplessness. It was the further prosecution case that the parents of the deceased informed the deceased about the same. He went to the house of parents of the appellant, where quarrel took place between them. Therefore, the deceased returned alone and told his brothers and other acquaintances that the appellant had threatened and abused him by using filthy words. On the next date i.e. on 27th July, 1998, the deceased was found hanging with a rope by neck on the raft of his house and he was found dead. A suicide note was left by the deceased. On the basis of the said suicide note, the charge-sheet was filed against said Sanju alias Sanjay Sengar. A petition challenging filing of charge-sheet was filed before the High Court under Section 482 of the Code of Criminal Procedure. The same was rejected. Hence, said Sanju alias Sanjay Sengar approached the Hon'ble Apex Court.

13. The Apex Court in Sanju @ Sanjay

Sengar's case considered the 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., 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die' . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

10. In Mahendra Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads as under:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."

11. This Court, considering the definition of 'abetment' under Section 107 I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

12. In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section

306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said :

"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."

14. After considering the earlier judgments, Their Lordships observed 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 the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that 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, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.

15. Their Lordships of the Apex Court further have reproduced the suicide note in the said case in paragraph 14 of the judgment, wherein Sanjay Sengar was directly implicated to be the person responsible for suicide of the deceased. After reproducing the said suicide note, Their Lordships observed thus at paragraph 15 -

"15. .......... The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25th July, 1998 and if the deceased came back to the house again on 26th July, 1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken pace on 25th July, 1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of 'abetment' are totally absent in the instant case for an offence under Section 306 I.P.C. ......."

After these observations, Their Lordships allowed the appeal and quashed 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 in Bharat Sanchar Nigam Ltd. The deceased i.e. Deepakbhai Krishnalal Joshi has committed suicide. On the basis of complaint filed by his wife, an FIR came to be registered. The petitioner had applied for discharge. The trial Court rejected it. The Gujarat High Court upheld the order of the trial Judge. Being aggrieved thereby the petitioner has approached the Apex Court. The prosecution heavily relied on the suicide note of the deceased wherein it was stated that the petitioner was responsible for his death. The Apex Court negating the contention on behalf of prosecution observed thus :-

"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide.

11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so- called suicide note, it cannot be said that the accused even intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of

the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this.

12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note.

13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306 IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant- accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Duta v. State of W.B., this Court had quashed the

proceedings initiated against the accused.

14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work." (emphasis supplied)

17. In case of S.S.Cheena (cited supra), there was a dispute between one Saurav Mahajan, who was a final year student of Law Department and Harminder Singh, a fellow student of the same class with regard to the theft of a mobile phone. This came to the notice of M.D. Singh, the then Head of the Law Department who asked both the students to submit their versions of the incident in writing. The deceased and Harminder gave their versions and, thereafter, M.D.Singh forwarded their versions to the University authorities for taking necessary action. An inquiry was conducted on 13th October 2003 by the Security 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 of the train. A suicide note was seized from the the pocket of the deceased. On the complaint of father of the deceased, an offence under section 306 of I.P.C. was registered against Harminder Singh. During the course of trial, S.S. Cheena was also impleaded as accused. Being aggrieved by the framing of charge, S.S. Cheena approached the High Court. The High Court refused to interfere. Being aggrieved thereby, said S.S. Cheena approached the Supreme Court. The Apex Court observed thus:

"27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary 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. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

28. Abetment involves a mental process of instigating 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 committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.

29. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.

30. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the

conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside." (emphasis supplied)

18. Recently, in the case of State of Kerala and others .vs. S. Unnikrishnan Nair and others, reported in AIR 2015 Supreme Court 3351 : [2015 ALL SCR 2824], Their Lordships had an occasion to consider a similar case. In the said case, the Chief Investigating Officer had committed suicide pending investigation in a murder case. In the suicide note, it was alleged that two of his subordinates were responsible for his this situation. There were some allegations against one Advocate and the Chief Judicial Magistrate. The First Information Report came to be lodged against the subordinate officers. They filed a petition under Section 482 of the Criminal Procedure Code. The Kerala High Court quashed the First Information Report. Being aggrieved thereby, the State went in appeal before the Hon'ble Apex Court. While dismissing the appeal, the Their Lordships of the Apex Court observed thus :

"13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. The note, except saying that

the the respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reasons, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate."

10] This Court in similar set of facts in the case of

Seema Ajay Bhoosreddy vs. State of Maharashtra -

[2012(2) Bom.C.R.(Cri.)502] observed that deceased

student was hypersensitive, unable to face ground realities

of life to ordinary petulance which happen in day to day life.

Petitioner therein was a Professor in a Dental College and a

student of BDS Course had committed suicide. It was

alleged in F.I.R. that petitioner and other Doctors targeted

the deceased and asked her to complete difficult course

within a short time and had threatened her and so she

committed suicide. A suicide note was also found during

investigation in the said case. In this background, the

learned Single Judge (B.R. Gavai, J.) held that there is no

material which can even be said to be prima facie sufficient

to establish that applicants had done any act which can be

said to be with an intention to aid or instigate or abet the

deceased to commit suicide.

11] In the case on hand, the story of prosecution is

that Priti had love affair with the accused and they

developed physical relations. Since accused and his family

members refused for marriage, she committed suicide. PW-

1 Sujata Musale is sister of Priti and complainant. She

stated that Priti disclosed to her about relations with the

accused and how accused compelled her for physical

relations on the pretext of marriage and took her to Nashik

on 4.6.2010.

12] During investigation suicide note was found on the

spot. PW-4 Sangita Dambhare, sister of Priti, handed over

the chit to police at the time of recording spot panchanama.

According to Sangita, chit is in the handwriting of Priti. On

perusal of chit, it appears that Priti blamed accused and his

parents for refusal of marriage. From the tenor of chit, it can

be seen that Priti was a hypersensitive girl and just on

refusal of marriage, she took extreme step to put an end to

her life. From the facts stated in the chit and deposed by

PW-1 Sujata Musale, PW-4 Sangita Dambhare and other

witnesses, it is difficult to make out that accused abetted

the commission of suicide by Priti. As discussed above, law

is well settled that abetment under Section 306 of the Indian

Penal Code required is an abetment under Section 107 of

the Indian Penal Code. Prima facie there is no material to

indicate that accused had done any act which can be said to

be with an intention to aid or instigate or abet the deceased

to commit suicide.

13] In the above premise and considering the reasons

recorded by the trial court, this court finds that complainant

has no case on merits. Hence, the following order :

ORDER

Leave to appeal is rejected. No costs.

(Kum. Indira Jain, J.)

Gulande, PA