Bombay High Court

Appasaheb @ Eknath Nago Salunke vs The State Of Mah. Thr. P.S.O., P.S. ... on 22 August, 2017

Bench: V.M. Deshpande

Judgment

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

      CRIMINAL REVISION APPLICATION NO.180 OF 2009

Appasaheb @ Eknath Nago Salunke,
Aged about 48 years, Occupation Service,
R/o Shivam Apartment, 511/06,
Saivibhag, Ambarnath (East),
District Thane.                                                   ..... Applicant.

                                 ::   VERSUS   ::

The State of Maharashtra,
Through Police Station Officer,
Police Station Hivarkhede,
Tahsil Khamgaon, District Buldana.             ..... Non-applicant.

================================================================
          Shri S.V. Sirpurkar, Counsel for the applicant.
          Shri I.J. Damle, Addl.P.P. for the non-applicant/State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : AUGUST 22, 2017.

ORAL JUDGMENT

1. The present criminal revision application takes an

exception to order passed by learned Sessions Judge at

Khamgaon dated 10.6.2008 below Exhibit 51 in Sessions Case

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No.110 of 2006. By the impugned order, learned Judge of the

Court below rejected application Exhibit 51 which was filed

on behalf of the present applicant under Section 227 of the

Code of Criminal Procedure, 1973 for discharge.

2. I have heard learned counsel Shri S.V. Sirpurkar

for the applicant and learned Additional Public Prosecutor

Shri I.J. Damle for the non-applicant/State. Both learned

counsel for the parties vehemently submit in support of their

respective briefs. Learned Additional Public Prosecutor Shri

I.J. Damle also made available copy of charge-sheet for

perusal of this Court.

3. Before adverting to facts of FIR No.71 of 2005 from

which the present application for discharge arises, I would

like to place on record prelude for lodging the said first

information report.

4. Deceased is one Kirti. It is not in dispute that her

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marriage was performed by first informant Krishna Shankar

Patil, father of Kirti with one Vikram Shamrao Patil on

1.5.2005. It appears that Kirti was not satisfied with her

marriage. Therefore, when first informant Krishna was out of

town, she ran away in the night of 4.5.2005 along with one

Mukesh Yashwant Salunke. This Mukesh is nephew of the

present applicant.

5. Search of Kirti was made and ultimately she was

found in the house of the present applicant at Ambarnath

(East), a suburb of Mumbai. The incident of the said, running

away by Kirti from her house, led to lodging of the first

information report against Mukesh and other accused persons

including the present applicant.

A Trial was conducted for the offences punishable

under Sections 363, 366, 116, 212, 376, and 153A read with

Section 34 of the Indian Penal Code against Mukesh and 11

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other accused persons including the present applicant who

was arranged as accused No.3 in Sessions Case No.142 of 2005.

The said Trial was resulted into acquittal of all the accused

persons vide judgment and order dated 19.5.2006 passed by

learned 4th Ad hoc Additional Sessions Judge at Jalgaon.

6. Be that as it may, during pendency of the said

Trial, first informant Krishna, who obtained custody of his

daughter Kirti from Mahila Sudhar Gruha, sent Kirti to her

maternal uncle Vijay Balwant Pandhare, a resident of

Lakhanwada and Kirti was residing at Lakhanwada.

7. On 1.8.2005 first informant Krishna had been to his

house at Jamner. He received a phone call from Lakhanwada

that his daughter Kirti consumed poison and she is admitted

to hospital of Dr. Mankar at Akola. She was there for

about 4-5 days. Thereafter, she was shifted to the Government

Hospital at Akola. However, during her treatment, she

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expired on 8.8.2005. Postmortem report was conducted and,

thereafter, funeral was also performed.

8. First informant Krishna, father of deceased Kirti

lodged a report against 5 persons viz. Mukesh and his other

relatives including the present applicant. Prior to lodging of

the first information report, accidental death proceedings

bearing AD No.14 of 2005 under Section 174 of the Code of

Criminal Procedure, 1973 were registered at Hiwarkhede

Police Station.

9. Krishna, father of deceased Kirti gave his report to

Hiwarkhede Police Station. On the basis of said, FIR No.73 of

2005 for the offence punishable under Section 306 read with

Section 34 of the Indian Penal Code was registered against the

present applicant and others. The said first information

report states about earlier incident of running away of Kirti

with Mukesh and she being located at the house of the present

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applicant at Ambarnath (East), a suburb of Mumbai. It is

stated in the first information report that after custody

was obtained by the first informant, she was sent to her

maternal uncle's place at Lakhanwada. As per the first

information report, since Kirti was kidnapped by

Mukesh and his friend co-accused Vijay Punamchand

Sungat, at the instance of other co-accused Punamchand

Babu Sungat and Sau. Anita Punamchand and the

present applicant, he established sexual intercourse

with Kirti and, therefore, her reputation was malign in

the society and, therefore, she committed suicide.

10. Statements of various witnesses were

recorded by the investigating officer in F.I.R. No.71 of

2005. Even, a chit was also found which according to the

prosecution is written by deceased Kirti herself. The

said was also seized under seizure panchanama. The

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gist of the said chit shows that she is fed up and she

does not give blame on anybody for committing her

suicide.

11. After completion of the entire investigation,

the charge-sheet was filed. Learned Judicial Magistrate

First Class at Khamgaon, in whose Court the

investigating officer presented the final report, noticed

that the offence is exclusively triable by the Court of

Sessions. Therefore, on 21.7.2006 he passed committal

order.

12. After committal to the Court of Sessions, case

was registered as Sessions Case No.110 of 2006. In the

said sessions case, application Exhibit 51 was moved by

the present applicant for his discharge from the

proceedings on the ground that the entire investigation

and the charge-sheet are conspicuously silent in respect

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of any role that can be attributed to the present

applicant by which it could be said that he is

responsible for suicidal death of Kirti. Of course, the

application was contested by learned Public Prosecutor

incharge of the brief. Learned Judge of the Court below

dismissed the application.

Hence, this criminal revision application.

13. The offence of abetment is a separate and

distinct one. Section 107 in Part-V of the Indian Penal

Code deals with abetment of thing. It would be useful to

reproduce herein below the said provision.

"Section 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

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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 of that thing.

Illustration A, a public officer, is authorized 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 B 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 facilitate the commission thereof, is said to aid the doing of that act."

From the said provision of law, in order to

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hold a person as causing abetment of a thing, the

prosecution is under an obligation to point out (i)

instigation on his part to any person to do a particular

thing; or (ii) engages with one or more persons in any

conspiracy for doing of that thing, and (iii) intentionally

aids by an act or an illegal omission for doing of that

thing.

The dictionary meaning of "instigate" is, to

provoke, to incite, or to urge.

Section 108 of the Indian Penal Code deals

with abettor.

14. In order to attract culpability of a person that

he has abeted a person to commit suicide, in my view,

the prosecution must show involvement of such a person

either direct or indirect by which it could be even

presumed that by doing such an act either directly or

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indirectly has induced or provoked a person to commit

suicide.

15. The law, on such type of cases, is not in

res integra. Under various situations and circumstances

when an offence is registered against an accused person

under Section 306 of the Indian Penal Code, are quashed

by the Honourable Apex Court and by this Court. Few

pronouncements are :- Swamy Prahaladas ..vs.. State of

M.P. and another, reported at 1995 SCC (Cri) 943 ; M.

Mohan ..vs.. State Represented by the Deputy

Superintendent of Police, reported at 2011 ALL MR (Cri)

1659 (S.C.); Amalendu Pal @ Jhantu ..vs.. State of West

Bengal, reported at 2009 ALL MR (Cri) 3755 (S.C.);

Sanju alias Sanjay Singh Sengar, reported at (2002)5

SCC 371 ; Madan Mohan Singh ..vs.. State of Gujarat

and anr, reported at 2010 ALL MR (Cri) 3245 (S.C.) ; and

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Dr. Mrs. Seema Ajay Bhoosreddy ..vs.. The State of

Maharashtra, reported at 2011 ALL MR (Cri) 3326.

16. In the background of aforesaid settled

principles of law, let us examine factual aspect so as to

reach to a conclusion as to whether even prima facie

the prosecution is able to show the finger of guilt

against the present applicant as a person responsible for

inducing Kirti to commit suicide. As observed in earlier

part of this judgment, the applicant along with other co-

accused was prosecuted in the Sessions Trial for the

offences punishable under Sections 363, 366, 116, 212,

376, and 153A read with Section 34 of the Indian Penal

Code. Of course, charge under Section 376 of the Indian

Penal Code was not against the present applicant. All

the accused persons including the present applicant

were acquitted of the offences by learned Judge of the

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Court below and which has attained the finality. Even,

in the said offences allegation against the present

applicant was that he provided shelter to principal

accused Mukesh and deceased Kirti at his behest. The

present first information report also recites the said

allegation against the present applicant. Thus, role,

that is attributed against the present applicant, is that

he provided shelter to deceased Kirti and principal

accused Mukesh when Kirti ran away with him at

Mumbai. There is nothing available on record to show

that when Kirti along with Mukesh reached to the house

of the present applicant, the applicant was having

knowledge that Kirti has run away from her house. In

my view, no objection can be taken to the act on the part

of the present applicant to provide shelter or to

accommodate them in his house looking to the fact that

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the present applicant is real uncle of principal accused

Mukesh.

17. During the course of investigation of the

crime, the investigating officer has recorded statements

of Vijay Balwant Pandhare, Vilas Baburao Pandhare,

Smt. Shantabai Bhagwat Pandhare, Sau. Mangalabai

Vijay Pandhare, and Abhishek Vijay Pandhare.

18. Amongst others, Vijay Balwant Pandhare is

maternal uncle of deceased Kirti. He is the

Superintendent of Engineer in the Water Works

Department at Nashik. He is resident of Lakhanwada.

Even, first informant Krishna states in his first

information report that after custody of Kirti was

obtained from Mahila Sudhar Gruha, in stead of putting

her in his house he chose to ask Kirti to reside with

maternal uncle Vijay Pandhare at Lakhanwada.

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Abhishek is son of Vijay Pandhare. Sau. Mangalabai is

wife of Vijay Pandhare. Smt. Shantabai works in the

house of Vijay Pandhare at Lakhanwada.

19. Perusal of statements of these prosecution

witnesses shows that Kirti was residing at Lakhanwada

prior to her death for about one and half months. The

statements of these prosecution witnesses are totally

silent that at any point of time they noticed that Kirti

was disturbed or she exhibited any act by which it could

be gathered that she was disturbed and/or complained

about the present applicant.

20. Admittedly, the applicant resides at

Ambarnath (East), a suburb of Mumbai, which is far

away place from Lakhanwada. It is not the prosecution

case, as it could be seen from the charge-sheet, that at

any point of time, during the stay of Kirti at

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Lakhanwada, the present applicant tried to establish

any type of contact with her. However, in order to keep

the record straight, I would like to observe that during

the investigation, the investigating officer has recorded

a statement of one Vilas Baburao Pandhare, who is one

of relatives of Vijay Pandhare, and resident of

Lakhanwada. According to his statement, on 25.7.2005

he noticed, when returning from his agricultural field,

Kirti standing in front of the house of Vijay Pandhare

and that time two unknown persons aged about 20 to 25

years came on a motorcycle. They stopped in front of

the house of Vijay Pandhare and then had laughed at

Kirti and they went away. According to the statement of

this Vilas Pandhare, he can identify those persons if

those are shown to him.

21. To a specific query being put to learned

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Additional Public Prosecutor from the Court as to

whether in the present case any test identification

parade was conducted or not, learned Additional Public

Prosecutor, after having gone through the entire

charge-sheet, submits that no such test identification

parade was conducted.

This is all the prosecution case about the

suicidal death of Kirti.

22. There can be number of reasons, why persons

commit suicide. It is not that for every suicide there

would be either inducement or incitement or

provocation. In order to bring home the case for the

offence punishable under Section 306 of the Indian

Penal Code, it is the bounden duty of the prosecution to

place such material before the Court by which even a

prima facie involvement of the accused is required to

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be exhibited. This Court is aware of the principles while

deciding the prosecution case at the time of

consideration of an application for discharge. Even, at

the stage of consideration of the application for

discharge, the prosecution cannot take a spacious plea

that it is open for the prosecution to prove its case

during the course of the Trial. To prove the case at

Trial, in my view, there must be some foundation in the

prosecution case and that can only be seen while

examining the charge-sheet. If there is no iota of

evidence against any accused, in my view, he cannot be

asked to face a gamut of the Trial and in such cases the

Court should readily intervene in the matters by passing

the appropriate orders.

23. In the light of the aforesaid discussions and in

view of the fact that there is no evidence whatsoever in

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the nature against the present applicant, in my view,

learned Judge of the Court below has mechanically

rejected the application even withtout looking and

discussing the prosecution case cursorily. That leads

me to pass the following order:

ORDER

i) The criminal revision application is

allowed.

ii) Order passed by learned Sessions Judge at

Khamgaon dated 10.6.2008 below Exhibit 51 in

Sessions Case No.110 of 2006 is hereby

quashed and set aside.