Bombay High Court

Mukesh S/O Dattopant @ Dattatray ... vs State Of Maharashtra,Thr.Pso.Ps ... on 31 August, 2017

Bench: R. B. Deo

                                              1


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


                     CRIMINAL APPEAL NO.462 OF 2002


 Mukesh S/o. Dattopant @ Dattatraya Mudgal,
 aged about 36 years, Medical Practioner,
 R/o. Kawarapeth, Umrer, District Nagpur.                            ...APPELLANT


                           ...V E R S U S...

         
 The State of Maharashtra,
 Through Police Station Officer,
 Police Station Umrer, Nagpur,                                       ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. D.B. Chavan, Counsel for appellant.
 Mr. A.V.Palshikar, Addl. Public Prosecutor for respondent.
 -------------------------------------------------------------------------------------------

                                           CORAM:            ROHIT B. DEO, J.

                                           DATE:                th
                                                             31    AUGUST, 2017.


 ORAL JUDGMENT

 1                The   appellant   is   aggrieved   by   judgment   dated

26.8.2002 in Sessions Trial 563 of 2000 delivered by 7 th Assistant

Sessions Judge, Nagpur convicting the appellant (hereinafter

referred to as the "accused") of offence punishable under section

306 of the Indian Penal Code (for short "IPC") and imposing

sentence of rigorous imprisonment for ten years and payment of

fine of Rs. 5,000/-.

2 I have heard Shri. D.V. Chavan, the learned counsel

for the accused and Shri. A.V. Palshikar, the learned Additional

Public Prosecutor for the State.

Shri. D.V. Chavan would urge, that the judgment impugned

is unsustainable on facts and in law and the reasoning of the

learned Sessions Judge dangerously borders on perversity. Shri.

Chavan would urge, that even if arguendo, the entire evidence on

record is taken at face value, the prosecution has not established

the necessary ingredients of section 306 of IPC. Per contra, the

learned APP makes a strenuous effort to support the judgment

impugned and contends that the prosecution has proved the

charge under section 306 of IPC beyond any reasonable doubt.

3 Deceased Mamta was an employee of the accused

who is a Medical Practitioner having dispensary and residence in

the same premises. Mamta was in the employment of the accused

since the age of 8 to 10 years and she resided at Umrer with her

parents.

4 The incident occurred on 8.2.2000. Mamta returned

home from the dispensary of the accused at 6.30 p.m. Mamta

concededly suffered burn injuries at her residence. Mahesh and

Kausalyabai, the brother and the mother of Mamta entered the

house and witnessed Mamta burning. Mahesh and Kausalyabai

extinguished the fire. The accused and Laxman the other brother

of Mamta arrived at the residence. Accused arranged a vehicle

and admitted Mamta at the private hospital of Dr. Sanjay Gadekar.

Kausalyabai, Laxman and one Abhay Tiwari an employee of the

accused accompanied the accused when Mamta was taken from

Umrer to Nagpur for hospitalization. Mamta expired on

20.2.2000.

5 Police Station Umrer prepared a spot panchanama

and seizure panchanama on 9.2.2000 and the Executive

Magistrate recorded the dying declaration of Mamta on 9.2.2000.

Mamta disclosed in the dying declaration that when she was

lighting a lamp, the lamp flared up and flames came into contact

with her clothes. On 20.2.2000, Abhay Tiwari an employee of

accused intimated the Police Station, Dhantoli, Nagpur about the

death of Mamta. An accidental death inquiry under section 174 of

the Criminal Procedure Code was registered, an Inquest

Panchanama was recorded and Post Mortem was conducted.

Police Station Officer, Dhantoli Police Station, Nagpur conveyed

the Accidental Death information to Umrer Police Station and an

Accidental Death Inquiry was registered on 21.2.2000.

6 Police Station Officer, Umrer recorded the statements

of the mother and brother of deceased Mamta on 7.4.2000. The

investigation was then transferred to Police Sub Inspector (PSI)

Manikrao Sangode who again recorded their statements on

30.5.2000. PSI Sangode also recorded the statement of

Madhukar, Chandrakala, Laxman, Natthu Wasulkar and

Chandrakala Wasulkar on 30.5.2000. Statement of some other

witnesses including Dr. Sanjay Gadekar were also recorded during

investigation.

The prosecution case is that during the investigation, PSI

Sangode learnt that accused had mercilessly beaten Mamta prior

to the incident and PSI Sangode, therefore, lodged First

Information Report (FIR) pursuant to which offence punishable

under section 306 of IPC was registered by Police Station Umrer. I

have noted that the dying declaration was recorded by the

Executive Magistrate on 8.2.2000 (Exh. 26). This dying

declaration in which the deceased Mamta categorically states that

she suffered burn injuries due to an accident is discarded by the

learned Sessions Judge on the ground that the Dr. Sanjay Gadekar

did not certify that Mamta was conscious nor did the defence

suggest to Dr. Sanjay Gadekar (PW4) that Mamta was conscious

and in a fit condition to give her statement. Be it noted, that the

dying declaration (Exh.26) is produced on record alongwith

charge-sheet and in a sense the dying declaration is not disputed

by the prosecution. The finding recorded by the learned Sessions

Judge is that the dying declaration can not be relied upon since

PW4 did not certify that Mamta was in a fit condition to give

statement. Concededly, PW 4 - Dr. Sanjay Gadekar, consented to

recording the dying declaration and the Executive Magistrate has

mentioned that the dying declaration was read over to deceased. I

am not inclined to agree with the finding recorded by the learned

Sessions Judge that the absence of certificate would ipso facto

render the dying declaration unreliable. It must be borne in mind

that the dying declaration Exh. 26 is produced by the prosecution

and exhibited on admission. However, even de hors the dying

declaration which absolves the accused of any culpability, I am

convinced that the evidence on record is grossly insufficient to

prove the charge much less prove the charge beyond reasonable

doubt.

7 PW1 - Kausalyabai, who is the mother of the

deceased Mamta, deposes that she was informed by the deceased

that the accused beat Mamta mercilessly and struck her head on

the wall since Mamta received a call. PW1 also mentions an

incident which is unconnected with the incident of the accused

beating Mamta. She states that since she conveyed to the accused

that Mamta should not work at the dispensary, she was inflicted 2

to 3 slaps by the accused. In response to a suggestion from the

Additional Public Prosecutor, PW 1 categorically denies that

Mamta told her that accused had established physical relationship

with Mamta one month prior to the incident. At this stage, PW1

was cross examined on behalf of the prosecution during which PW

1 answered every suggestion given by the Additional Public

Prosecutor in the affirmative. In the cross examination on behalf

of accused, PW 1 admits that she neither lodged a report against

the accused nor did she disclose to any person the alleged conduct

of the accused. PW2 - Chandrakalabai only states that she called

the accused when Mamta suffered burn injuries and that accused

and his wife came to the spot and made arrangement to

hospitalize Mamta at the Nagpur hospital. Madhukar, the father

of the deceased is examined as PW 3. All that Madhukar states is

that on the day of incident Mamta received a phone call believing

her uncle Kirti was on the line and held up the receiver and the

accused beat Mamta. PW 4 is Dr. Sanjay Gadekar who treated

Mamta. Dr. Sanjay Gadekar states that he was not present near

Mamta when dying declaration was recorded. He however,

admits that he consented to recording of the dying declaration by

Executive Magistrate. PW 5 is Mahesh and his testimony is limited

to stating that after noticing that Mamta was afire, PW5 and

Kaushalyabai extinguished the fire. PW 6 - Abhay Tiwari is an

employee of the accused and states that in his presence no

incident involving Mamta occurred. PSI Manikrao Sangode is PW

7 and he proved the printed FIR Exh. 55.

8 The only credible and believable version of the

prosecution is that an incident did take place at the dispensary

which the accused may have treated as misconduct and the

accused beat Mamta. The learned counsel for the accused would

urge, and not without justification, that even if the dying

declaration is kept out of consideration and arguendo it is

assumed that the deceased committed suicide, the allegation that

the accused beat Mamta, even if it is assumed that allegation is

established, would not constitute an offence punishable under

section 306 of IPC.

9 It would be apposite to refer to sections 306 and 107

of IPC, which read thus:-

" Sec.306. 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."

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

First - Instigate 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".

It is well settled that mens rea is a sine qua non to bring

home charge under section 306 of IPC and it is necessary for the

prosecution to establish that the accused had the intention to aid

or instigate or abet the deceased to commit suicide. Abetment is

held to involve a mental process of instigating a person or

intentionally aiding a person in doing of a thing. The conviction

cannot be sustained unless a positive act on the part of the accused

to instigate or aid in commission of suicide, is established.

10 Shri. D.V. Chavan has invited my attention to the

judgment of the Hon'ble Supreme Court in M. Mohan Vs. State,

2011 CRI.L.J.1900, Chitresh Chopra Vs. State, AIR 2010 1446

and to the Division Bench judgments of this Court in Binod s/o.

Ratan Sarkar & Ors. Vs. The State of Maharashtra & Ors, 2014

ALL MR (Cri) 1216, Kavish s/o. Bharat Gahankari Vs. State of

Maharashtra & Anr, 2017 ALL M.R.(Cri.) 1955, Manish

Shashikant Bhalerao Vs. State of Maharashtra & Anr (Criminal

Application (Apl) No. 323 of 2017, to substantiate the contention

that even if entire evidence is taken at face value, the prosecution

has failed to establish the mens rea or that the accused has done

any active or direct act with the intention or the knowledge that

Mamta will be compelled to take the extreme step. In Chitresh

Kumar Chopra Vs. State (Govt. of NCT of Delhi) the Ho'ble

Supreme Court observes thus:-

"14. As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who "instigates" any person to do that thing. The word "instigate" is not defined in the IPC. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhatisgarh. Speaking for the three- Judges Bench, R.C. Lahoti, J. (as His Lordship was then) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act. To satisfy

the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necesssarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incide the conssequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."

"15. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action: provoke to action or reaction" (see : Concise Oxford English Dictionary), to keep irritating or annoying somebody until he reacts" (See : Oxford Advanced Learner's Dictionary - 7th Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular, direction especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encoursage the doing of an act by the latter. As observed in Ramesh

Kumar's case (2001 AIR SCW 4282) (supra), where the accused by his acts or by a continued course of conduct crates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (1) the accused kept on irrigating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation".

11 In M. Mohan Vs. State, the Hon'ble Supreme Court articulates the legal position thus:-

"43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears 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 of abetting the offence of suicide should be found guilty".

"44. 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 word "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 others. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances".

"45. 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".

"46. The intention of the Legislature and the ratio of the cases decided by this court are 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 this act must have been intended to push the deceased into such a position that he/she committed suicide".

12 It would be useful to refer to the judgment of the Hon'ble Supreme Court in Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh, AIR 2002 SC 1998, the relevant observations of which read thus:-

"13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25 th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. 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 unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. 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".

13 If the evidence is appreciated on the anvil of the law

articulated by the Hon'ble Supreme Court, I have no hesitation in

recording a finding that the prosecution has not proved the

offence under section 306 of IPC, much less beyond reasonable

doubt. The necessary ingredients have not been established. Even

if it is assumed that the accused did beat Mamta, the necessary

mens rea is lacking. Nothing is brought on record to suggest that

the accused allegedly beat Mamta with the intention of pushing

her to commit suicide or with the knowledge that the deceased

will inevitably feel compelled to commit suicide. Before parting

with the judgment, I must note with concern that learned Sessions

Judge has resorted to surmises and conjunctures in observing that