Gurunath Laxman Gawli And Anr vs The State Of Maharashtra
2017 Latest Caselaw 1005 Bom

                                                           907-REVN-687-2016.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELLATE JURISDICTION
           CRIMINAL REVISION APPLICATION NO.687 OF 2016

 1 Gurunath Laxman Gawli 
    Adult Indian Inhabitant, 
    Aged 45 years Occupation:Business

 2  Smt. Sangita Gurunath Gawli
     Adult Indian Inhabitant, 
     Aged 39 years Occupation: Housewife
     Both residing at Vitthal Nagar, 
     Jagruti Society, Building No.12, 
     Room No.104,
     Mulund (West) Mumbai-400 080                     )...Applicants

        V/s.
 1 State Of Maharashtra                               )...Respondent
 2 Smt. Sunita Umesh Bomble,
    Age 32 years r/o Jagruti CHSL,
    B.No.11, Room No.305, 3rd Flr.,
    Vitthal Nagar, S.L.Road, Mulund (West)
    Mumbai 400 080.

 Mr. Aditya Gore, Advocate for the Applicants.

 Mr. S.V.Gavand, APP for the Respondent - State.

 Mr. Sandeep Singh, Advocate for R.No.2.

                               CORAM    :    A. M. BADAR, J.

                               DATE     :    24th MARCH, 2017.

 ORAL JUDGMENT  :

                  Petitioners Gurunath Gawli and Sangita Gawli who are 

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accused in Crime No.455 of 2014 registered with Police Station

,Mulund at the instance of Sunita Bomble, (widow of the deceased

Umesh Bomble) for offences punishable under Sections 306, 323,

504, 506, 427 read with Section 34 of IPC and under Section 32B

and 33 of the Bombay Money Lenders Act, by this application are

challenging the order dated 21.11.2016 passed by the learned

Additional Sessions Judge, Greater Bombay thereby rejecting their

application for discharge in Sessions Case No.680 of 2015 and 278

of 2016 so far as offences punishable under Sections 306, 323,

504, 506 read with Section 34 of IPC and under Section 33 of the

Bombay Money Lenders Act, (presently Maharashtra Money

Lenders Act) are concerned.

2 Heard the learned advocate for revision

petitioners/accused. By taking me extensively through the entire

charge-sheet and particularly, through the FIR lodged by Sunita

Bomble and statements of witnesses such as Nagesh Bomble,

Sanjay Patel, Datta and Shailendra Rokde, the learned Advocate

argued that there are several deficiencies in statements of

prosecution witnesses and it appears that loop holes are being

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plugged in by recording statements of witnesses by the

Investigator. It is argued that Sanjay Patel, who was employee of

the deceased Umesh Bomble had not averred anything against the

present revision petitioners-accused. Witness Datta has stated

about the stale incident which allegedly took place prior to two

months. Shailendra Rokde has stated whatever he heard from the

sister of the deceased and, therefore, his statement is also of no

assistance for proceeding against accused persons. The charge-

sheet shows that revision petitioners-accused have not done

anything on the day of incident. The learned advocate further

argued that there is no documentary evidence about taking of loan

by the deceased from revision petitioners-accused persons. Even

the deceased had not written any suicidal note implicating

revision petitioners-accused persons.

3 The learned advocate for revision petitioners-accused

relied on several rulings on interpretation of Section 306 as well

as Section 107 of IPC to demonstrate ingredients necessary for

constituting the offence punishable under Section 306 of IPC. By

placing reliance on the judgment in Criminal Writ Petition

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No.855 of 2013 with connected matter in Suresh Ramlu

Aulwar and Ors v. State of Maharashtra decided on 10.10.2013

by the learned Single Judge of this Court, the learned advocate

argued that torments caused to the deceased are required to be

coupled with the intention of the accused for making out the

offence punishable under Section 306 of IPC. Reliance is placed on

observations made in paragraph 18 of this judgment. By relying

upon paragraph 15 of the judgment of the learned Single Judge of

this Court in the matter in Criminal Writ Petition NO.2622 of

2012 Raviraj Ramchandra Deshpande v. State of Maharashtra

and Anr., decided on 18.6.2014, it is argued that for making out

offence punishable under Section 306 of IPC, it is necessary to

demonstrate that the accused has instigated or intentionally aided

or had done any act as contemplated under Section 107 of IPC

which results in commission of suicide by the deceased. Reliance

is also placed on paragraphs 9 and 21 of the judgment of this

Court dated 25.2.2015 in Criminal Revision Application No.417

of 2013 Mr. Wasim Hussain Shaikh v. State of Maharashtra to

demonstrate that even if it is assumed that the deceased

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committed suicide on account of humiliation felt by him due to

treatment given to him by accused persons that, by itself, would

not render accused persons liable for having abetted commission

of suicide by the deceased. Reliance is also placed on paragraph

19 of the judgment dated 26.4.2012 of the learned Single Judge

of this Court in Writ Petition No.1113 of 2011 Shivraj Shitole &

Others v. State and Another decided on 26.4.2012 wherein law

in respect of offence of abetment is summarised in paragraph 19

of the said judgment. To demonstrate that establishing

molestation punishable under the Bombay Money Lenders Act

multiple act of money lending is required, reliance is placed on

the judgment of the learned Single Judge pronounced on

22.9.2015 in Writ Petition No.627 of 2015 Mandubai Vitthoba

Pawar v. State of Maharashtra and others. To demonstrate that

there must be reasonable certainty to incite consequences of

commission of suicide by the deceased, reliance is placed on the

judgment of the Hon'ble Apex Court in the matter of Ramesh

Kumar v. State of Chhatisgarh reported in (2001)9 SCC 618.

The judgment of the Hon'ble Apex Court in the matter of Sanju

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alias Sanjay Singh Sengar v. State of Madhya Pradesh reported

in AIR 2002 SC 1998 is relied to buttress the contention that

mens-rea is necessary ingredient of the offence of abetment. The

learned advocate for revision petitioners-accused also relied upon

the judgment of the Hon'ble Apex Court in the matter of Gangula

Mohan Reddy v. State of Andhra Pradesh in Criminal Appeal

No.1301 of 2002 decided on 5.1.2010 and Criminal Appeal No.

1135 of 2016 Gurcharan Singh v. State of Punjab decided on

2.12.2016 by the Hon'ble Supreme Court for contending that

there should be live link or nexus between the abetment and

commission of result thereof. With the aid of these reported

rulings, it is argued by the learned advocate for revision

petitioners-accused that the evidence collected by the investigator

submitted in the form of charge-sheet doesnot show any

instigation or abetment by revision petitioners-accused to

deceased Umesh Bomble in commission of suicide by him and,

therefore, they are entitled for the discharge.

4 The learned APP by placing reliance on the judgment

of the Hon'ble Apex Court in the matter of Palwinder Singh v.

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Balwinder Singh and Others reported in AIR 2009 SC 887

argued that at the stage of discharge drawing suspicion is enough

to frame the charge and marshalling or appreciation of evidence is

not in the domain of the Court at the point of framing of charge.

By placing reliance on the explanation to Section 107 which

defines abetment, the learned APP argued that conduct of revision

petitioners-accused prior to commission of act, offence, i.e. suicide

by deceased Umesh Bomble shows that they had facilitated

commission of suicide by Umesh Bomble, making out sufficient

grounds for proceeding against them.

5 I have also heard the learned advocate appearing for

the respondent no.2 i.e. the first informant.

6 The instant revision petition challenges the order

rejecting the application for discharge from the offences which are

mentioned in opening paragraph of this judgment. Accused

persons have invoked revisional jurisdiction of this Court and it is

well settled that this jurisdiction is to be exercised sparingly when

there is glaring defect of procedure or manifest error on the point

of law which results in miscarriage of justice. As the matter

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pertains to discharge, it is apposite to quote law on this subject

crystalized by catena of judgments by the Hon'ble Apex Court. In

the matter of State of Tamil Nadu vs. N. Suresh Rajan & Ors.

AIR 1982 SC (SUPP) 1982, it has been held thus by following law

laid down in several other rulings by the Hon'ble Apex Court:

"We have bestowed our consideration to the rival submissions and the submissions made by Mr.Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouth piece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to

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be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat and Ors. v. State of Uttar Pradesh and Anr., AIR 2013 SC 52 : (2012 AIR SCW 6171), in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) (2008) 2 SCC 561 : (AIR 2008 SC (Supp) 204 : 2008 AIR SCW 96):

"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for

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presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence." " .

7 It is thus, clear that at the stage of discharge probative

value of material has to be gone into for limited purpose for

determining whether there are grounds for framing charges

against accused persons and whether there are grounds for

presuming that the offence has been committed. Whether such

grounds are sufficient for recording conviction against the accused

cannot be examined at the stage of framing of the charge or

considering the material from the angel whether accused persons

are entitled for discharge from alleged offences. Deep probe of

probative value of the material collected by the Investigating

Officer is not necessary. Even strong suspicion founded on the

material which leads the Court to form presumptive opinion about

ingredients of alleged offence is sufficient and would justify

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framing of charge.

8 Keeping in mind this law on the aspect of framing of

charge or discharge of the accused persons from offences alleged

against them, let us note facts of the prosecution case.

9 Umesh Bomble committed suicide by hanging at his

residential house on 28.9.2014. His widow Sunita Umesh Bomble

lodged the FIR on the very same day with Mulund Police Station

which has resulted in registration of crime in question. According

to the prosecution case,deceased Umesh Bomble was a small time

vendor doing business of sale of cutlery on the foot-path of a road

in Mumbai. He was not a well educated person. He had passed

only 5th standard school examination. It is case of the prosecution

that said Umesh Bomble had started "Bhishi" a term used in

common parlance for chit fund scheme-(Best Chit) whereby

several persons collect certain determined amount at regular

intervals and pays that amount to one member whose chit is taken

out randomly. According to the prosecution case, this scheme

started by Umesh Bomble met with a failure as persons to whom

the amount was paid as per chits drawn left that scheme without

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making further contribution for remaining members of that

scheme. This had occasioned Umesh Bomble to obtain loan from

several persons in order to meet his financial obligations towards

other unpaid members of the Bhishi group. Accordingly, he

obtained loan of Rs.18 Lakhs from revision petitioner-Ganesh

Gawli and that of Rs.1 Lakh from revision petitioner-Sangita

Gawli. In a similar fashion, he has obtained loans from other

persons also who are arraign as accused persons by the

Investigator. However, in the case in hand we are concerned with

revision petitioners-accused namely, Ganesh Gawli and his wife

Sangita Gawli.

10 It is case of the prosecution that because of consistent

harassment by present revision petitioners-accused to Umesh

Bomble for and on account of recovery of loan allegedly advanced

by them, Umesh Bomble committed suicide and present revision

petitioners are abetors to this act of offence by Umesh Bomble.

11 The term 'abetment' is defined in Section 107 of the

IPC. It reads thus,

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

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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.

12 Perusal of the definition of the term 'abetment' as such

makes it clear that abetment does not involve actual commission

of crime but it is crime apart. Abetment involves actual active

complicity on the part of abettor at point of time prior to or at the

time of commission of offence. Abetment is complete when other

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is instigated to commit an act of offence. Thus, for making out the

offence punishable under Section 306 of IPC, the prosecution is

enjoined to establish that there was instigation, provocation,

incitement or encouragement by accused persons to the deceased

to commit suicide. Some active suggestions or some stimulations

by accused persons are required to be indicated in order to frame

the charge for the offence punishable under Section 306 of IPC.

Similarly, it is well settled that for making out the offence

punishable under Section 306 of IPC , mens-rea which is an

essential ingredient of the offence defined in Section 107 of IPC is

required to be shown as without knowledge and intention there

cannot be abetment. This is a ratio which can be culled out from

the cited rulings. Keeping in mind this aspect, one will have to

examine prima-facie whether suicide of Umesh Bomble is a

common course of events and natural result of normal human

conduct so as to constitute sufficient ground for framing charge

under this head.

 13                  Prima-facie, it is seen from the report of autopsy that 

 the   deceased   Umesh   Bomble   died     due   to   asphyxia     due   to 


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hanging indicating commission of suicide by him as report of his

medical examination doesnot show any external injury on the

dead body. Suicide is an act of offence punishable under Section

309 of IPC and, therefore, question is whether there are prima-

facie grounds for proceeding against present revision petitioners

for the offence punishable under Section 306 of IPC which makes

a person abetting of suicide by another liable for imprisonment

which may extend to 10 years apart from imposition of fine.

14 The FIR lodged with promptitude on the date of

incident itself by the widow contains averments regarding failure

of BC scheme started by deceased Umesh Bomble and

consequently taking of hand loans amounting to Rs.18 Lakhs and

1 Lakh respectively from revision petitioners by him for

discharging his liability towards other unpaid members of that

scheme. The charge-sheet reflects that revision petitioner

no.1/accused Ganesh Gawli is a licenced money lender. Acts of

revision petitioners for getting refund of that amount from the

deceased are also finding their place in the FIR. As per the version

of the first informant/widow, she along with her deceased

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husband as well as father-in-law Nagesh, mother-in-law

Shakuntala and brother-in-law Arun were residing jointly at Vijay

Nagar area of Mulund. His twelve years old son and eight years

old daughter of the couple were also residing with the deceased.

This family background is relevant for deciding whether there are

prima-facie sufficient grounds for proceeding for the offence

punishable under Section 306 of IPC. As per version of the first

informant/widow, there was some delay on part of her deceased

husband-Umesh Bomble in refunding the amount taken as a hand

loan from revision petitioners-accused, and, therefore, both

revision petitioners-accused were frequently visiting work place as

well as place of residence of the deceased Umesh Bomble. At both

these places as per the version of the first informant/widow,

revision petitioners-accused were abusing deceased Umesh

Bomble and also assaulting him. Apart from this, the first

informant/widow has also stated in the FIR that as her deceased

husband Umesh Bomble was not in a position to refund hand

loan, revision petitioner no.1-Ganesh Gawli was insisting him to

hand over to him the document of title of their residential house

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and on that count was frequently abusing and assaulting her

husband i.e. deceased Umesh Bomble. The first informant-widow

also narrated consequences of these assaults and threats by stating

that her deceased husband went into depression and started

drinking liquor and also attempted to commit suicide in June,

2014. Similar is the statement of Nagesh Bomble father of the

deceased Umesh Bomble. Datta who is vendor having shop in the

area has stated that two months prior to the incident of

commission of suicide of Umesh Bomble, revision petitioner no.1-

Ganesh Gawli had threatened deceased Umesh Bomble in the

market place by asking him to refund the amount of hand loan. At

that time, threat of assault was also given and then, as per version

of Datta, revision petitioner no.1-Ganesh Gawli had abducted

deceased Umesh Bomble by taking him somewhere else.

Statement of Datta also contains oral dying declaration made by

deceased Umesh Bomble to him to the effect that revision

petitioners-accused comes to his house in odd night hours and

threatens him for refund of money and demands documents of

title of his house.

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 15               Sarika Gawli is sister of the deceased Umesh Bomble. 

She has also disclosed the incident of assault by revision

petitioners-accused to the deceased Umesh Bomble for extorting

money and visits of revision petitioners-accused at odd night

hours to the house of the deceased Umesh Bomble.

16 As noted in forgoing paragraphs, intention and mens-

rea are pre-requisite of offence of abetment. There should be

reasonable nexus between the act of the offence and abetment by

accused persons. Intention harboured by an accused is mental

state of mind and no tangible evidence can be produced by the

prosecution to establish intention. Therefore, intention of accused

persons is required to be gathered from all surrounding

circumstances by applying test of a prudent person. In the case in

hand, deceased Umesh was family man having joint family. He

was residing his parents, his children and his wife as well as a

brother. Material collected by the Investigator shows that in order

to seek repayment of hand loans advanced to deceased Umesh,

revision petitioners-accused were visiting him not only at his work

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place but also at his residential house and that too not only at day

hours but at odd night hours i.e. at about 1.30 a.m. for getting

back hand loan. Recitals in the FIR as well as statement of

witnesses show that on failure to pay back the amount, deceased

Umesh Bomble was receiving beating and abuses in front of his

family members as well as at his work place from revision

petitioners-accused. The truthfulness of these allegations spoken

out by witnesses cannot be gone into at this stage but these

allegations are considered for determining whether they are

constituting sufficient grounds for proceeding against revision

petitioners-accused for the offence punishable under Section 306

of IPC. In my considered view, a prudent family man may met

with such treatment day in and the day out would certainly think

of commission of suicide by believing that the life is now not

worth living and he should die. Statement of witnesses and the

FIR lodged by the widow shows unbearable, continuous and

repeated attacks and demands of money to the deceased by

revision petitioners-accused. Conduct of revision petitioners-

accused in assaulting the deceased for getting back the amount

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appears to be wilful and its gravity seems to propel or compel a

person of ordinary prudence to commit suicide. Cornered to a wall

by such behaviour of revision petitioners-accused, deceased

Umesh was bound to think that it is better to die rather than

suffering such humiliations in front of his children and other

family members. Matter is required to be viewed from the angel

whether accused persons could reasonably foresee result of their

act and whether they can apprehend that with such acts, they are

likely to propel or compel the deceased to commit suicide.

Continuously beating a family man in presence of his family

members at his home and at the work place so also demanding

documents of title of his residential house to him in my considered

view certainly amounts to instigation and provocation to him to

commit an act of offence i.e. suicide. Explanation (ii) of Section

107 of IPC is rightly pointed out by the learned APP to

demonstrate that doing anything in order to facilitate commission

of act of offence also amounts to abetment. Act of revision

petitioners-accused spoken by witnesses prima-facie reflects their

mens rea. Suicide committed by deceased Umesh is seen to be the

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common course of event and natural result of normal conduct of a

man of ordinary prudence.

17 In this view of the matter, if material gathered in the

charge-sheet is appreciated in proper perspective then it cannot be

said that ingredients of the offence of abetment to commit suicide

are not reflected from the material gathered by the prosecution.

Therefore, no case for interference in revisional jurisdiction is

made out. Revision is, therefore, dismissed. Needless to mention

that all these observations are prima-facie in nature which shall

not have bearing on the trial of the case.

                                                  (A. M. BADAR, J.)




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