Maniklal @ Manikchand Chandulal ... vs The State Of Maharashtra
2017 Latest Caselaw 8258 Bom

                                    (1)                           cri.appln 3071.17

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO. 3071 OF 2017

1.    Maniklal @ Manikchand Chandulal Borana
      Age: 66 years, Occ. Agriculture,
      R/o. Terkheda, Tq. Washi,
      Dist. Osmabanad.

2.    Shantilal Chandulal Borana
      Age: 76 years, Occ. Agriculture,
      R/o. Terkheda, Tq. Washi,
      Dist. Osmabanad.

3.    Kantilal Chandulal Borana
      Age: 70 years, Occ. Agriculture & Business,
      R/o. Terkheda, Tq. Washi,
      Dist. Osmabanad.

4.    Subhash Zumbarlal Borana
      Age: 58 years, Occ. Agriculture,
      R/o. Terkheda, Tq. Washi,
      Dist. Osmabanad.

5.    Sumit Subhash Borana
      Age: 26 years, Occ. Business,
      R/o. Samarthnagar, Tq. Osmanabad,
      Dist. Osmabanad.                                ...      Applicants

                       Versus

1.    The State of Maharashtra
      Through Police Station Yermala
      Dist. Osmanabad.

2.    Shantiling Rangnath Kumbhar,
      Age: 50 years, Occ. Agriculture,
      Tq. Terkheda, Tq. Washi,
      Dist. Osmanabad.                                ...      Respondents



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                                         (2)                            cri.appln 3071.17

                                    -----
Mr. Sudarshan J. Salunke, Advocate for the Applicants.
Mr. A.R. Kale, A.P.P. for the Respondent/State.
Mr. S.P. Brahme, amicus curie (Appointed Advocate).
                                    -----

                                    CORAM :   S.S. SHINDE &
                                              MANGESH S. PATIL, JJ.

DATE OF RESERVING THE JUDGMENT : 10.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 31.10.2017 ...

JUDGMENT: (Per Mangesh S. Patil, J.)

. Rule. Rule is made returnable forthwith. With the consent of

both the sides the matter is heard finally.

2. The applicants are invoking the powers of this Court under

Section 482 of the Cri.P.C. for quashing the F.I.R. no. 84 of 2017 lodged

with Yermala Police Station, District Osmanabad on 24.05.2017 alleging

inter alia about they having abetted commission of suicide of one

Suvarna Shantiling Kumbhar, wife of the present respondent no.2.

3. According to the learned Advocate for the applicants, there

has been a long standing litigation going on between their family on the

one hand and the family of the respondent no.2 on the other. The civil

suits have been decided in their favour and even the writ petition

preferred by the family of the respondent no.2 was dismissed by this

(3) cri.appln 3071.17

Court. Though the deceased Suvarna has committed suicide, there is

absolutely no material or allegation against the applicants to constitute

an offence of abetment of suicide punishable under Section 306 of the

Indian Penal Code. The allegations in the complaint only refer to a

suicidal note as the basis for drawing an inference of abetment.

However, even the contents of the suicidal note taken at its face value do

not suggest about they having abetted suicide. The learned Advocate in

support of his submission also sought to draw parallel with the decision

in the case of G. Sagar Suri and Anr. V/s. State of U.P. and Ors.;

AIR 2000 SC 754, State of Kerala and Ors. V/s. S. Unnikrishnan

Nair and Ors.; AIR 2015 SC 3351 and also in the case of Netai Dutta

V/s. State of West Bengal; AIR 2005 SC 1775.

4. The learned Advocate for the respondent no.2 and the

learned A.P.P. strenuously submitted that in view of the contents of the

suicidal note, wherein it has been specifically alleged by naming all the

applicants that due to their harassment deceased Suvarna was

committing suicide, the F.I.R. registered on that basis cannot be

quashed.

5. We have perused the papers filed with the application, as also

the investigation papers.

(4) cri.appln 3071.17

6. It is apparent that there has been a long standing civil

dispute going on between the family of the applicants on the one hand

and that of the respondent no.2 on the other. It is also apparent that

both the suits viz., R.C.S No. 90 of 2009 and R.C.S. No. 525 of 2008

have been finally decided in favour of the applicants. The former was

lodged by the family of the respondent no.2 which was dismissed,

whereas, the latter was filed by the family of the applicants which was

decreed. It is also apparent that initially the son of the deceased had

lodged the report with the police specifically mentioning that his mother

sustained burns because of flickering of the stove when she attempted to

heat water. Further, it is also apparent from the investigation papers

that dying declaration was recorded and even in that dying declaration

recorded before the Executive Magistrate deceased Suvarna had not

attributed any instigation on the part of the applicants. At the first blush

these circumstances support the applicants' version.

7. However, it needs to be borne in mind that a suicidal note

allegedly written by the deceased Suvarna on the previous day forms the

basis of changing the course and the impugned F.I.R. was registered on

the basis of the contents of this suicidal note. The suicidal note has also

been got examined by a hand writing expert to confirm that it was

(5) cri.appln 3071.17

written by Suvarna. It is therefore necessary to refer to the contents of

the suicidal note which is written in vernacular. Roughly translated the

relevant portion thereof reveals that Suvarna was mentally disturbed,

applicant Maniklal Chandulal was repeatedly harassing her and

threatening to kill her whenever she used to go for toilet. She has

pretended that she had caught fire due to flickering of the stove but in

fact she had poured kerosene on her person and had set herself ablaze.

It also reads that all the applicants by name Shantilal Chandulal Borana,

Kantilal Borana, Subhash Borana, Sumit Borana had mentally harassed

her and threatened her of dire consequences and because of the

harassment, action should be taken against them if something wrong

was to happen to her. A bare reading of these contents would prima

facie show that the harassment meted out to deceased Suvarna by the

present applicants has been said to be the triggering factor for her to

commit suicide. At this juncture, we cannot and should not examine the

evidentiary value of the suicidal note. Suffice for the purpose to observe

that the contents of the suicidal note specifically attribute harassment

meted out by the applicants as the cause for commission of the suicide

by the deceased and for the purpose of deciding the present application

that should be the end of the matter. The contents of the F.I.R. based on

the suicidal note, therefore, prima facie make out a case of abetment of

(6) cri.appln 3071.17

suicide by the applicants.

8. Reliance placed by the learned Advocate for the applicants on

the decisions of the Supreme Court (supra) is misplaced. Though, in

some of the cases the facts are similar, the principle laid down therein

does not come to the rescue of the applicants. Obviously, the decisions

lay down a binding precedent, however, those have been rendered in the

peculiar facts and circumstances of the cases obtaining before the

Supreme Court.

9. In the case of Sagar Suri (supra), the accused persons were

alleged to have approached the complainant finance company for grant

of loan and had issued cheques for re-payment of the loan but which

were dishonored and a proceeding under Section 138 of the Negotiable

Instruments Act was initiated by the finance company against the

accused borrowers. In these circumstances, it was held that the

complaint filed against the accused borrowers for duping the finance

company for the offences punishable under Section 406 and 420 of the

Indian Penal Code could not sustain. Obviously, the facts obtaining

before the Supreme Court were peculiar and no parallel can be drawn

with the matter in hand.

(7) cri.appln 3071.17

10. In the case of S. Unnikrishnan Nair (supra), it has been

laid down that for constituting an offence punishable under Section 306

of the Indian Penal Code, there has to be a clear mens rea to commit the

offence. It requires an active act which leads the deceased to commit

suicide seeing no option but to commit suicide. In that case, the Chief

Investigating Officer appointed by the High Court had committed suicide

pending investigation in a murder case. The suicide note left behind by

him, except saying that the respondents-accused compelled him to do

everything and cheated him and put him in deep trouble contained

nothing else. The respondents accused where inferior in rank and it was

noted that it was surprising that such a thing could have happened. The

allegations were really vague and in the facts and circumstances peculiar

to the case where the deceased was made head of the investigating team

by the High Court and the High Court had also reposed confidence and

faith in him, it was improbable that harassment allegedly meted out by

the inferior could have abetted the suicide. Again, ex facie no parallel

can be drawn in the two cases, one before the Supreme Court and the

one at hand. As is observed above, at the cost of repetition, the suicide

note herein specifically attributes repeated harassment by the applicant

no.1 Maniklal Chandulal and threat by him whenever the deceased used

to go for toilet and also specifically attributes such harassment to all the

(8) cri.appln 3071.17

applicants by name. Therefore, the applicants are not entitled to draw

any advantage from the decision in the case of S. Unnikrishnan Nair

(supra) also.

11. Lastly, in the case of Netai Dutta (supra) there was no

averment in the alleged suicide note attributing any harm caused by the

accused to the deceased or there was any allegation against the accused

that he was responsible for delay in paying salary. The deceased in the

course of his employment in M/s. M.L. Dalmiya and Co. Ltd., was posted

at various work sites of the company. He was transferred to the stores

located at Kolkata. Pursuant to the transfer order he did not join the

duty and after a period of about two years he sent in his resignation

expressing grievance of stagnancy of salary and also alleged that he was

a victim of unfortunate circumstances. The resignation was accepted,

however, he committed suicide leaving a suicide note which was the basis

for registering the offence. In the suicide note, it was mentioned that

one Netai Datta and Paramesh Chatterjee had engaged him in several

wrong doings. A reference was made to both of them alleging that he

had reported certain incidents to them. However, it was concluded by

the Supreme Court that a reading of the suicide note revealed that the

deceased was not satisfied with the working conditions in the office. He

(9) cri.appln 3071.17

had to work some times throughout the day. It is in the peculiar facts of

this case that it was held that the contents of the suicide note were

falling short to constitute abetment. Again, in the matter in hand, as we

have noted herein-above there are specific allegations attributing overt

acts on the part of all the applicants in instigating deceased Suvarna to

commit suicide, and in view of such allegations in the complaint, we are

not inclined to exercise the inherent jurisdiction vested in us under

Section 482 of the Cr.P.C.

12. In the result, the application is liable to be rejected, however,

it is made clear that the observations made herein-above are restricted

to the decision of the matter in hand and shall not influence either the

investigation or the trial.

13. The application is rejected. Rule is discharged.

      [MANGESH S. PATIL, J.]                           [S.S. SHINDE, J.]




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