Jeevan S/O. Vehromal Shivnani vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 6816 Bom

                                               1                                      apl 330.17.odt

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


                 Criminal Application (APL) No. 330 of 2017


Jeevan S/o Vehromal Shivnani, 
Aged about 51 years, 
Occupation : Business, 
R/o. 153, Main Road, Jaripatka, 
Nagpur.                                                          ....        Applicant 


      // Versus //


(1) State of Maharashtra,
      through Mankapur Police Station, 
      Mankapur, Nagpur. 

(2) Smt. Mayabai Ramdayal Rajak,
      aged about 45 years, 
      R/o Bhim Nagar Jhopadpatti,
      Mankapur P.S., Nagpur.                                     ....     Non-Applicants



Shri Sahil S. Dewani, Advocate for the Applicant.
Shri S. S. Doifode, Additional Public Prosecutor for the Non-applicant 
No. 1.             
Shri U. R. Phasate, Advocate for the Non-applicant No. 2.
                                                       


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

                                     DATE       :  6.9.2017.


ORAL JUDGMENT (Per  SMT. VASANTI  A  NAIK, J.)



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The Criminal Application is admitted and heard finally at the

stage of admission with the consent of the learned Counsel for the

parties.

2. By this criminal application, the applicant seeks the quashing

and setting aside of the First Information Report bearing No. 83/2017

registered against the applicant under the provisions of Section 306 of

the Penal Code.

3. Few facts giving rise to the Criminal Application are stated

thus :

The applicant is a partner of the partnership firm "Fair Deal

Arcade" dealing in electronic goods and other household items. Nilesh,

who has allegedly committed suicide in the midnight between

27.8.2016 and 28.8.2016, was an employee in the shops of the applicant

that are located in the Yeshwant Stadium and the Empress Mall. On

20.8.2016, it was found by the son of the applicant by name Darshan that

7 LED TVs from the shop/warehouse of the applicant were stolen. A

report was lodged by Darshan in regard to the said theft, naming therein

Nilesh and the two other employees of the applicant. On the registration

of the crime on the report lodged by Darshan bearing No. 176/2016, the

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offences were registered against Nilesh and others under the provisions

of Section 381 read Section 34 of the Penal Code. The statements of

Nilesh and the two other accused under Section 27 of the Evidence Act

were recorded and 2 LED TVs were recovered from the house of the sister

of Nilesh and five others from the house of the other two employees. It

appears that earlier, in the beginning of year 2016, Nilesh was thrown

from a bridge by three persons and it appears that the three accused were

tried and two of them were convicted of the offences alleged against

them. The incident in regard to the three persons throwing Nilesh from

the bridge is recorded in this Judgment merely with a view to understand

the contents of the suicide notes that were allegedly written by Nilesh

prior to his death in the midnight between 27.8.2016 and 28.8.2016.

After Nilesh committed suicide, the non-applicant no. 2, his mother

lodged the report with Mankapur Police Station alleging therein that

Nilesh had committed suicide due to the harassment by the three persons

who had thrown Nilesh from the bridge, the applicant as also the Police

Authorities before whom Nilesh was required to forcibly admit that he

had committed theft of two LED TVs. Despite the lodging of the report

by the non-applicant no.2, the non-applicant no.1 had not registered the

F.I.R. According to the non-applicant no.1, two suicide notes were later

on recovered from the house of deceased Nilesh, in which he had alleged

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that the three persons who had thrown him from the bridge, the

applicant and the Police Authorities were responsible for his death. After

the alleged suicide notes were recovered, the non-applicant no.1

registered the F.I.R. against the applicant and the two other persons who

were involved in the theft of 5 LED TVs. Since, according to the

applicant, even if the contents of the suicide notes, on the basis of which

the FIR is registered by the non-applicant no.1, as also the contents of the

F.I.R. are accepted at their face value in the entirety, an offence

punishable under Section 306 of the Penal Code cannot be made out

against the applicant.

4. Shri Sahil Dewani, the learned Counsel for the applicant

submitted that even if it is assumed that the two alleged suicide notes

were written by deceased Nilesh himself and the contents of the same are

accepted at their face value in the entirety, prima facie the offence

punishable under Section 306 of the Penal Code cannot be made out

against the applicant. It is submitted that for making out a case of

abetment of doing an act or thing, as is required by the provisions of

Section 107 of the Penal Code, the instigation by a person against whom

the offence is alleged, is necessary. It is submitted by taking this Court

through the provisions of Section 107 of the Penal Code that for making

out the case for abetment, instigation, conspiracy or intentional aid for

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the commission of crime or the act or thing would be necessary. It is

submitted that even if the contents of the F.I.R. and the suicide notes are

accepted at their face value, it cannot be said that the applicant had

abetted the commission of suicide by Nilesh. It is submitted that neither

the applicant intended that the deceased Nilesh should commit suicide

nor did the applicant commit any such acts which would have left Nilesh

with no other option but to commit suicide. It is submitted that in the

first suicide note which is marked as Q1 in the report of the handwriting

expert and in the police record, Nilesh had only alleged that the applicant

and his friends have falsely implicated him in the case of theft of

television sets. It is stated that, in the other alleged suicide note that is

marked as Q2 the allegation against the applicant is that the applicant

had filed a report against Nilesh in the case of theft of television sets and

because of the said report, the police had harassed Nilesh in the Police

Station and had forcibly secured a statement from him, that the

television sets were kept in the house of his sister. It is submitted that it

is stated in the second suicide note at Q2 that because of the harassment

by the applicant and the Police Authorities, he is committing suicide. It is

submitted that it is apparent from the report of the handwriting expert

that is annexed to the affidavit- -in-reply filed on behalf of the non-

applicant no. 1 that the handwriting at Q1 and Q2 is not of the same

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person and the said handwriting also does not match with the normal

handwriting of Nilesh with which it was compared at N-1, N-2, N-3. The

learned Counsel relied on the Judgments of the Hon'ble Supreme Court

reported in (2002) 5 SCC 371, Sanju @ Sunny vs. State of Madhya

Pradesh; (2011) 3 SCC 626, M. Mohan vs. State, represented by

Deputy Superintendent of Police; (2010) 12 SCC 190, S.S. Chheena

vs. Vijay Kumar Mahajan and Others; (2009) 16 SCC 605, Chitresh

Kumar Chopra .vs. State of NCT Delhi; (1992) SCC Cri 426, State of

Haryana .vs. Bhajanlal and (2005) 10 SCC 498, Ramashish Raj vs.

Jagdish Singh and the Judgments of this Court reported in 2016 ALL

MR(Cri) 4328, Dilip and Others vs. State of Maharashtra, through

Police Station Officer and another and 2017 ALL MR(Cri) 1695, Smt.

Jayashre Kotgirwar vs. State of Maharashtra to substantiate his

submissions.

5. Shri S.S.Doifode, the learned Additional Public Prosecutor

appearing for the Non-applicant no.1 submitted that initially, the First

Information Report was not registered against the applicant, but after the

suicide notes were recovered from the house of deceased Nilesh, the

F.I.R. was registered. It is stated by producing the case papers pertaining

to the investigation that the only material available with the Non-

applicant no. 1 for registering the First Information Report against the

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applicant and two others are the two suicide notes, allegedly written by

Nilesh. It is stated that the opinion of the handwriting expert is also

placed before this Court along with the affidavit-in-reply so that the

Court should pass appropriate order in the circumstances of the case.

6. Shri U.R.Phasate, the learned Counsel for the Non-applicant

No. 2 submitted that due to the report lodged by the applicant and the

statements made by the co-workers, Nilesh was left with no other course

open but to commit suicide. It is submitted that the applicant had

wrongly named Nilesh in the theft case, as a result of which Nilesh was

made to suffer harassment at the hands of the Police and was forced to

make a statement that two LED TVs were kept in the house of his sister

though a television was purchased by him for his sister, on installments.

It is submitted that since Nilesh was deeply aggrieved due to the action

on the part of the three persons who had thrown him from the bridge

and also the applicant and his other colleagues who had implicated him

in the theft case, the F.I.R. was rightly registered against the applicant. It

is submitted that on a reading of the two suicide notes, it could be said

that Nilesh was left with no other option, but to commit suicide.

7. It would be necessary to note that, after the report was

lodged by the non-applicant no.2 in August, 2016 against the applicant

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and the other employees from the shop of the applicant, the non-

applicant no.1 had not registered the F.I.R. against the applicant or the

other employees. However, about eight months after the death of Nilesh,

two suicide notes allegedly written by Nilesh were said to have been

recovered from the house of Nilesh and on the basis of said suicide notes,

the F.I.R. was registered against the applicant and the two other

employees working in the shop of the applicant. Before noting the

contents of the two suicide notes, it would be necessary to bear in mind

that a copy of the opinion of the hand writing expert is annexed to the

affidavit-in-reply filed on behalf of the non-applicant no.1 and as per the

opinion of the handwriting expert, the Q1 - Suicide note and Q2 -

Suicide note bear the handwriting which is different from each other and

it also does not match with the normal handwriting of deceased Nilesh.

Be that as it may, since we are not deciding whether the alleged suicide

notes were really penned by Nilesh or not, it would be necessary to

consider the contents of the two suicide notes as according to the non-

applicant no.1, the F.I.R. is registered against the applicant solely on the

basis of the two suicide notes allegedly penned by Nilesh. It is stated in

the first Suicide note - Q1, allegedly written by Nilesh that the three

persons who had thrown him down the bridge had further threatened

him that they would kill his family members if he does not withdraw the

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case that is registered against them. It is written in the said suicide note

at Q1 that those three persons who had thrown him off the bridge were

asking him to die on a Railway Line. We are not concerned with these

allegations while considering the prayer made by the applicant for

quashing and setting aside the F.I.R. lodged against the applicant. The

other part of the alleged suicide note makes a reference to the wrongful

naming of Nilesh by the applicant and his friends in the theft of TV Sets.

These are the only two allegations in the suicide note of Nilesh at Q-1,

the first allegation is referable to the three persons who had thrown him

off the bridge and the second allegation pertains to the applicant and his

friends who had involved him in the theft case. Even if we accept the

allegations in the suicide note at Q1 at their face value and in the

entirety, it cannot be said that an offence could be prima facie made out

against the applicant for abetment to commit suicide. It would now be

necessary to consider the contents of the second suicide note allegedly

written by Nilesh at Q2. In the second suicide note, it is mentioned that

though he had not committed the theft of TV Sets in the shop of the

applicant, he was accused of committing theft and the police had beaten

him up and had forcibly secured a statement from him that he had

committed the theft of TV Sets. It is stated in the suicide note that the

police had wrongly seized the TV Sets that were gifted by him to his

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sister. It is then stated in the suicide note that he was committing suicide

due to the harassment by the applicant and the police. After having noted

the contents of the two suicide notes, which are allegedly written by

Nilesh, as this is the only material available with the non-applicant no.1

for registering the F.I.R. against the applicant, it would be necessary to

consider whether prima facie an offence u/s.306 of the Penal Code could

be made out against the applicant. While doing so, it would be necessary

to consider the provisions of Section 107 of the Penal Code that refer to

the abetment of an act or thing. Section 107 of the Penal Code reads

thus:

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 dis- close, voluntarily causes or procures, or attempts to cause

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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, wilfully 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."

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

of the Code that for constituting abetment, mental process instigating a

person or intentionally aiding a person in doing of an act or thing would

be necessary. Without a positive act on the part of the accused to

instigate or aid in the commitment of sucide, the offence under Section

306 of the Penal Code cannot be prima facie made out. It is held by the

Hon'ble Supreme Court in the celebrated case of M. Mohan .vs. State,

represented by Deputy Superintendent of Police reported in (2011) 3

SCC 626 that abetment involves a mental process of instigating or

intentionally aiding a person in doing of a thing and without a positive

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act on the part of the accused to instigate or aid in committing suicide,

the offence of abetment to commit suicide cannot be made out. It is

observed by the Hon'ble Supreme Court in the said Judgment that there

should be a clear mens rea to commit the offence under Section 306 of

the Penal Code and it also requires an active or direct act which leads the

deceased to commit suicide seeing no other option and this act must have

been intended to push the deceased into such a position that he/she

commits suicide.

8. In the Judgment in the case of Sanju A Sunny .vs. State of

M.P. reported in (2002) 5 SCC 371, the Hon'ble Supreme Court held

after considering the definition of the word 'abetment' u/s.107 of the

Penal Code that the charge for an offence under Section 306 would not

be sustainable mainly on the allegation of harassment of the deceased. In

the Judgment in the case of S.S.Chheena .vs Vijay Kumar Mahajan and

another reported in (2010) 12 SCC 190, it was observed by the Hon'ble

Supreme Court that abetment involves a mental process of instigating or

intentionally aiding a person in doing of a thing. It is further observed

that it also requires an active act or direct act which leads the deceased to

commit suicide seeing no other option and that act must have been

intended to push the deceased into such a position that he commits

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suicide. In the Judgment reported in (2009) 16 SCC 605 in the case of

Chitresh Kumar Chopra .vs. State of NCT Delhi, it was held by th

Hon'ble Supreme Court that as per the provisions of Section 107 of the

Code, a person could be said to have abetted in doing a thing if he firstly

instigates any person to do that thing or secondly engages one or more

other person in conspiracy for the doing of that thing or thirdly

intentionally aids the doing of that thing by any act or illegal omission. In

the Judgment of the Bombay High Court in the case of Smt. Jayashree

Kotgiwar .vs. State of Maharashtra reported in 2017 ALL MR (Cri)

1695, where the deceased was blamed for theft of mobile, which is a

similar allegation like the one made in this case, this Court held that the

accused was in no way responsible in the commission of the suicide.

After observing so, this Court had quashed and set aside the F.I.R.

registered against the accused in that case. On a reading of the

Judgments referred to hereinabove, it appears that for making out the

offence under Section 306 of the Code, there should be a clear mens rea

to commit the offence i.e there should be either a clear intention of the

accused that the victim should commit suicide or the accused should be

involved in the commission of a direct or indirect act which would lead

the deceased to commit suicide, seeing no other option and such an act

must be intended to push the victim into the position that he commits

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suicide. 

9. As per the report of the handwriting expert, the handwriting

in the alleged suicide notes at Q1 and Q2 does not match with each other

and it also does not match with the normal handwriting of Nilesh. Even if

we accept the contents of the suicide notes at their face value, in the

entirety, by assuming that the suicide notes are penned by Nilesh himself,

an offence cannot be prima facie made out against the applicant u/s.306

of the Penal Code. In the first suicide note at Q1, the first allegation

refers to three persons who had thrown Nilesh down the bridge with

which we are not concerned. The other statement in the suicide note Q1

recites that the applicant and the other friends of Nilesh had wrongly

implicated him in the commission of theft and therefore he would

commit suicide. It appears that since seven LED TVs were stolen from the

shops of the applicant, the son of the applicant by name Darshan had

lodged a report in the Police Station mentioning therein the name of

Nilesh and the two other employees. It appears from the investigation

papers that two LED TVs that were allegedly stolen were recovered from

the house of the sister of Nilesh on a statement allegedly made by him

u/s.27 of the Evidence Act. Be that as it may, even if we accept the

contents of the first suicide note Q1, in the entirety, it cannot be said that

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the applicant instigated or intentionally aided Nilesh to commit suicide

and/or he had committed such direct or active act which lead Nilesh to

commit suicide seeing no other option as he was intentionally pushed

into a position that he committed suicide. Same would be our view in

regard to the contents of the second suicide note at Q2. In the second

suicide note - Q2, again a reference is made to the three persons who

had thrown Nilesh down the bridge and also lodging of report by the

applicant about the theft of TV Sets and harassment by the police, as a

result of which he intended to commit suicide. Even in the second suicide

note, we do not find any allegation that the applicant had an intention

that Nilesh should commit suicide or that the applicant had committed a

direct or active act which pushed him to commit suicide seeing no other

option. Since the ingredients of the offence punishable under Section 306

of the Penal Code cannot be prima facie made out, even if the contents of

the First Information Report and the two alleged suicide notes are

accepted at their face value and in the entirety, it would be necessary to

quash and set aside the F.I.R. lodged against the applicant by relying on

the Judgments of the Hon'ble Supreme Court reported in (1992) SCC

(Cri) 426, State of Haryana and Others .vs. Bhajan Lal and Others;

2004 SCC (Cri) 1805, State of A.P. vs. Golconda Linga Swamy and

another and 2005 (1) SCC 122, Zandu Pharmaceutical Works Ltd.

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and Others vs. Mohd. Sharaful Haque and another, wherein the

Hon'ble Supreme Court has laid down the guidelines and circumstances

in which the High Court would be required to exercise inherent powers

under Section 482 of the Code of Criminal Procedure. In the

circumstances of the case, it would a travesty of justice and an abuse of

process of Court if the F.I.R. is not quashed and the applicant is made to

undergo the trial when the F.I.R. and the material on record, i.e. the two

alleged suicide notes, even if accepted at their face value, do not prima

facie make out an offence against the applicant u/s.306 of the Penal

Code.

10. Hence, for the reasons aforesaid, the Criminal Application is

allowed. The F.I.R., bearing No.83 of 2017 registered against the

applicant for the offence punishable under Section 306 of the Penal Code

is hereby quashed and set aside. Order accordingly.

                                JUDGE                                   JUDGE


wasnik/jaiswal




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