Amol S/O Gulabrao Makode vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 6491 Bom

APL  364/17                                          1                           Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
            CRIMINAL APPLICATION (APL) No. 364/2017
Amol S/o Gulabrao Makode,
Aged about 43 years, Occ.-Service,
R/o Yeda, Tq.Daryapur, Distt. Amravati.                                        APPLICANT
                                    .....VERSUS.....
1.    The State of Maharashtra,
      Through the Police Station Officer,
      Police Station Asegaon (Purna),
      Tq. Achalpur, Distt. Amravati.
2.    Sudhakar Vitthalrao Nandane,
      Age 40 yrs, Occ-Agriculturist,
      R/o Virul Purna, Asegaon, Distt.Amravati.                          NON-APPLICA
                                                                                     NTS
          Shri Mahesh Rai and Shri S.S. Dhengale, Counsel for the applicant.
     Shri P.S. Tembhare, Additional Public Prosecutor for the non-applicant no.1.
                  Shri A.B. Syed, counsel for the non-applicant no.2.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    M.G. GIRATKAR, JJ.                

DATE : 23 TH AUGUST, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

The criminal application is ADMITTED and heard finally with

the consent of the learned counsel for the parties.

2. By this criminal application, the applicant seeks the

setting aside of F.I.R. No.92/2017 registered against the applicant for the

offence punishable under Section 305 read with Section 34 of the Penal

Code.

3. Few facts giving rise to the criminal application are stated thus:-

The applicant is working as a Headmaster in Shamkant Bobde

Vidyalaya in Purna, Taluka Chandur Bazar. A report was lodged by the

APL 364/17 2 Judgment

non-applicant no.2-Sudhakar, who is the father of deceased Vijay, that

the applicant-headmaster and another teacher in the school has abetted

the act of commission of suicide of his minor son Vijay, who was aged

about fourteen years. It was alleged in the report lodged by the non-

applicant no.2 that Vijay had gone to school to attend his classes on

22.03.2017 and he returned to the house at 10.00 a.m. It is alleged that

Vijay went to the fields on a motorcycle and consumed poison. It is

alleged in the complaint that when the non-applicant no.2 and his wife

were working in the agricultural field, a villager named Gajanan informed

him about the consumption of poison by Vijay. It is alleged in the report

that the non-applicant no.2 and his wife immediately went to the Primary

Health Centre, Asegaon and found that Vijay was shifted to Irwin

hospital. It is alleged that it was revealed by Vijay at about 2.00 p.m.

when he gained consciousness that a chit was kept by him in his pocket.

It is alleged in the report that after going through the chit, the non-

applicant no.2 became aware that the classmates of Vijay viz. Ankit,

Tejas, Abhijeet and Hrishikesh teased Vijay and he was unnecessarily

beaten by the applicant and the other teacher. It is stated in the

report that due to the harassment of Vijay by his friends and his

teachers, he had committed suicide by consuming poison on 22.03.2017.

On the basis of the report lodged by the non-applicant no.2-Sudhakar, a

first information report was registered against the applicant and the other

APL 364/17 3 Judgment

teacher for the offence punishable under Section 305 of the Penal Code.

The applicant has sought the quashing and setting aside of the first

information report.

4. It is stated on behalf of the applicant by referring to the

provisions of Section 107 of the Penal Code that for making out a case of

abetment of doing an act or a thing, there should be an instigation by the

person against whom the case for abetment, conspiracy or intentional aid,

as provided by Section 107 of the Penal Code is alleged. It is stated that

in the first information report, it is only alleged that Vijay was beaten up

by the applicant and the other teacher when Vijay shouted loudly after his

friends teased him. It is alleged in the first information report that the

applicant, the other teacher and the four students were harassing Vijay

and Vijay had consumed poison due to the ill-treatment meted out by the

applicant, the other teacher and the four students. It is submitted that

even if the statements in the complaint and the suicide note allegedly

written by Vijay, which is the only material for the registration of the first

information report, are accepted in the entirety at their face value, an

offence of abetment of suicide of Vijay cannot be made out against the

applicant. The learned counsel for the applicant relied on the judgments

of the Hon'ble Supreme Court reported in (2011) 3 SCC 626 (M.Mohan

Versus State represented by the Deputy Superintendent of Police), (2002) 5

APL 364/17 4 Judgment

SCC 371 (Sanju alias Sanjay Singh Sengar Versus State of M.P.) and the

judgment of the Bombay High Court reported in 2014 All M.R.

(Criminal) 1216 (Binod s/o Ratan Sarkar & Others Versus The State of

Maharashtra & Another) to substantiate his submission.

5. Shri Tembhare, the learned Additional Public Prosecutor

appearing on behalf of the non-applicant no.1 has submitted that the

offence under Section 305 of the Penal Code was rightly registered

against the applicant on the basis of the suicide note left behind by

deceased Vijay and the report lodged by his father, the non-applicant

no.2. It is submitted that it is apparent from a reading of the suicide note

of Vijay that he had committed suicide due to the ill-treatment meted out

by his four friends and his teachers.

6. Shri Syed, the learned counsel for the non-applicant no.2

submitted that it is apparent from the first information report and the

suicide note written by Vijay that the applicant not only harassed Vijay on

the day on which he committed suicide but on earlier occasions also. It is

submitted that though an application for grant of anticipatory bail was

filed by the applicant, the said application was rejected. It is submitted

that in this background, the relief sought by the applicant may not be

granted.

APL 364/17 5 Judgment

7. We have perused the first information report and the suicide

note allegedly written by Vijay before his death. It is alleged in the first

information report that Vijay had told the complainant, his father, that his

four friends, Ankit, Tejas, Hrishikesh and Abhijeet used to tease him

unnecessarily and when he used to confront them, they used to inform

about the same to the class teacher who used to beat Vijay. It is stated

that the four students used to tease Vijay and once when Vijay had

shouted loudly after they teased him, the applicant who came at the place

had beaten up Vijay. It is stated in the suicide note allegedly written by

Vijay that Ankit, Tejas, Hrishikesh and Abhijeet used to beat him and

tease him and when he used to do something to them, sir used to beat

him. it is further penned in the alleged suicide note that Ankit, Abhijeet,

Tejas and Hrishikesh used to threaten him that they would come to his

house and inform his parents that he was not attending the school and his

friends used to laugh at him. This is all that is written in the alleged

suicide note of Vijay. The only material for registering the first

information report is the complaint-report lodged by the non-applicant

no.2 and the alleged suicide note of Vijay. In this background, it would

be necessary to consider the provisions of Section 107 of the Penal Code

which relate to the abetment of an act or a thing. Section 107 of the

Penal Code reads thus:-

APL 364/17 6 Judgment

"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."

It is, thus, apparent from a reading of the provisions of Section 107 of the

Penal Code that in order to constitute abetment, the abettor must have

intentionally abetted the commission of the crime. The intention or mens

rea is necessary for constituting abetment under Section 107 of the Penal

Code. It is held by the Hon'ble Supreme Court in the judgment in the

case of M. Mohan Versus State represented by Deputy Superintendent of

Police, reported in (2011) 3 SCC 326 that abetment involves mental

process of instigating or intentionally aiding a person for doing a thing. It

APL 364/17 7 Judgment

is held by the Hon'ble Supreme Court in the said reported judgment that

there should be a clear mens rea to commit an offence under Section 306

of the Penal Code which was involved in that case. In the instant case, we

are concerned with Section 305 of the Penal Code as in the instant case, a

boy aged fourteen years had committed suicide. It is held in the case of

M.Mohan (Supra) that abetment would require the commission of a direct

or active act by the accused which would lead the deceased to commit

suicide, seeing no other option and such act must be intended to put the

victim into a position that he commits suicide. In the instant case, there

are no instances of instigation attributable to the applicant or even an

allegation thereof. All that is said against the applicant in the report

lodged by the non-applicant no.2 is that the applicant had beaten Vijay

when he had shouted loudly after Ankit, Abhijeet, Tejas and Hrishikesh

had teased him. We do not find anything either in the report lodged by

the non-applicant no.2 or in the suicide note allegedly written by Vijay

that there was any direct or indirect act of incitement to commit suicide.

It appears from the report that the allegation is that the applicant had

beaten Vijay, when he shouted loudly after his friends teased him, which

the applicant should not have ideally done but that would not mean that

the applicant had instigated Vijay to commit suicide or his act had led

Vijay to commit suicide, seeing no other option. The word 'incitement' or

'instigate' would literally mean to provoke or urge or bring about the

APL 364/17 8 Judgment

persuasion to do a thing. Merely because his four friends were teasing

Vijay and the applicant had once beaten up Vijay as per the report, it

cannot be said that the applicant had abetted the commission of an act or

a thing, i.e. suicide in this case. A similar view was expressed by the

Hon'ble Supreme Court in the judgment reported in (2002) 5 SCC 371

(Sanju alias Sanjay Singh Sengar Versus State of M.P.) and the judgment

of the Bombay High Court reported in 2014 All M.R. (Criminal) 1216

(Binod s/o Ratan Sarkar & Others Versus The State of Maharashtra &

Another). Even if we accept the allegations in the first information report

in the entirety, at their face value as also the statements made in the

alleged suicide note of Vijay, which is the only material for the purpose of

registering the first information report against the applicant, it cannot be

said that prima-facie an offence under Section 305 of the Penal Code

could be made out against the applicant. It was possible for the non-

applicant no.2 or the non-applicant no.1 to take any other action against

the applicant, if necessary but the first information report for the offence

punishable under Section 305 of the Penal Code could not have been

registered.

8. Hence, for the reasons aforesaid, the criminal application is

allowed. The first information report registered against the applicant for

the offence punishable under Section 305 read with Section 34 of the

Penal Code is hereby quashed and set aside.

 APL  364/17                                   9                        Judgment

              Order accordingly.  No costs.



              JUDGE                                    JUDGE
APTE