Gopal @ Sanket Ramakant Parsutkar vs State Of Maharashtra Thr. P.S.O., ...
2021 Latest Caselaw 220 Bom

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

               CRIMINAL APPLICATION (APL) NO.1086 OF 2018

  Gopal @ Sanket Ramakant Parsutkar,
  Age 21 Years, Occupation : Education,
  R/o. Wadgaon, Tahsil Korpana,
  Dist. Chandrapur.                                                .... APPLICANT

                                         // VERSUS //

  1)     State of Maharashtra,
  Through Police Station Officer,
  Police Station, Gadchandur,
  Tahsil Korpana, Dist. Chandrapur.

  2)    Arun s/o. Nanaji Gohokar,
  Age 45 years, Occupation : Agriculturist,
  R/o. Wadgaon,
  Taluka Korpana, Dist. Chandrapur.                       .... NON-APPLICANTS

  Shri S.R. Kadam, Advocate h/f. Shri R.R. Vyas, Advocate for applicant.
  Shri S.M. Ghodeswar, Addl. P.P. for State.
  Shri Prashant Khobragade, Appointed Advocate for non-applicant No.2.
  ________________________________________________________________
                                    CORAM         : V. M. DESHPANDE AND
                                                     ANIL S. KILOR, JJ.

DATE : 06th JANUARY, 2021.

JUDGMENT: [PER: Anil S.Kilor, J.]

Rule. Rule made returnable forthwith. The matter is

heard finally with the consent of the learned counsel for the parties.

2. The accused in crime No.533 of 2018, dated

06.10.2018, has approached to this Court by filing the present

application under Section 482 of the Code of Criminal Procedure,

for quashing of the aforesaid crime registered with Police Station

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Gadchandur, District Chandrapur, on a complaint lodged by the non-

applicant No.2 against the applicant for the offence punishable

under Section 305 of the Indian Penal Code.

3. It is the case of the prosecution that the respondent

No.2, complainant filed a report on 06.10.2018, stating that he was

having 3 daughters and her youngest and minor daughter had a love

affair with the applicant who promised her to marry with her, after

she becomes major. It is stated that on 28.09.2018, one Bhawana

Gohkar informed him that his daughter Pranjali is lying in his field.

Thereupon the complainant took her to the Government Hospital,

Gadchandur, where the police recorded her statement wherein she

stated that the applicant promised her to marry but latter he refused

and therefore, she consumed pesticide. She thereafter died at night.

4. It is alleged that as per the dying declaration, she talked

with the applicant on mobile phone on 28.09.2018 and at that time

the applicant told her that he will not marry with her and only

because of which, she was mentally disturbed and drank poisonous

pesticide.

5. We have heard Shri S.R. Kadam, learned counsel

holding for Shri R.R. Vyas, learned counsel for the applicant, Shri

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S.M. Ghodeswar, learned Additional Public prosecutor for the State

and Shri Prashant Khobragade, learned counsel for the non-

applicant No.2.

6. Shri Kadam, the learned counsel for the applicant

submits that even if the contents of the First Information Report are

taken as true, the same do not constitute offence under Section 305

of the Indian Penal Code.

7. He submits that there is no allegations in the First

Information Report to show that the applicant has abetted or aided

the deceased to commit suicide and in absence of the same, the

alleged offence does not attract and in the backdrop of above

referred position of law, compelling the applicant to face the trial

would amount to miscarriage of justice.

8. Per contra the learned APP submits that, during the

course of investigation, the spot panchanama was prepared and a

bottle of poison from the spot was seized. It has also informed to

this Court that a statement of mother, father and younger sister of

the deceased and statements of other relatives were recorded

wherefrom it can be seen the involvement of the applicant in the

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alleged offence. It is further submitted that the CDR report of the

mobile of the applicant has been obtained and further investigation

is going on in the present matter. Accordingly, he prays for dismissal

of the present application.

9. Let us first examine the position of law as regards pre-

requirements to attract offence of abetment of suicide. Recently, the

Hon'ble the Supreme Court of India in a case of Arnab Manoranjan

Goswami Vs. State of Maharashtra and others reported in 2020 SC

Online SC 964 had an occasion to consider the same. The Hon'ble

the Supreme Court of India has held thus:

55. The Court noted that before a person may be said to have abetted the commission of suicide, they ―must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Instigation,as this Court held in Kishori Lal(supra), "literally means to provoke, incite, urge on or bring about by persuasion to do anything". In S S Chheena vs Vijay Kumar Mahajan, a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, observed: ―

25. 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. The intention of the legislature and the ratio of the cases decided by this Court is 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

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active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.

56 Madan Mohan Singh vs State of Gujarat was specifically a case which arose in the context of a petition under Section 482 of the Cr.P.C where the High Court had dismissed the petition for quashing an FIR registered for offences under Sections 306 and 294(B) of the IPC. In that case, the FIR was registered on a complaint of the spouse of the deceased who was working as a driver with the accused. The driver had been rebuked by the employer and was later found to be dead on having committed suicide. A suicide note was relied upon in the FIR, the contents of which indicated that the driver had not been given a fixed vehicle unlike other drivers besides which he had other complaints including the deduction of 15 days' wages from his salary. The suicide note named the accused- appellant. In the decision of a two judge Bench of this Court,delivered by Justice VS Sirpurkar,the test laid down in Bhajan Lal(supra) was applied and the Court held:

"10.We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide.

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11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked himnot to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this."

57. Dealing with the provisions of Section 306 of the IPC and themeaning of abetment within the meaning of Section 107, the Court observed:

"12.In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note."

60. More recently in M Arjunan vs State (represented by its Inspector of Police)25, a two judge Bench of this Court,speaking through Justice R.Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations:―

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"7. The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.

Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."

10. The Division Bench of this Court in the case of Dilip and others Vrs. State of Maharashtra and others reported in 2016 ALL MR (cri) 4328 has held thus:

20. As has been held by Their Lordships of the Apex Court that for permitting a trial to proceed against the accused for the offence punishable under Section 306 of the Indian Penal Code, it is necessary for the prosecution to at least prima facie establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306 of the Indian Penal Code. As has been held by Their Lordships of the Apex Court that abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abeting the deceased to commit suicide, the said persons cannot be compelled to face the trial. Unless there is clear mens rea to commit an offence or active act or direct act, which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the accused under Section 306 of the Indian Penal Code, in our

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considered view, would be an abuse of process of law.

11. The pre-requirement of abetment of suicide under

Section 305 and Section 306 of the Indian Penal Code are same

except under Section 305, it shall be related with any person under

eighteen years of age, any insane person, any delirious person, any

idiot or any person in a state of intoxication.

12. From the contents of the First Information Report, only

reasons narrated by the complainant for commission of suicide by

his daughter is that the applicant refused to marry his daughter

though he had promised her to marry. The First Information Report

does not contain a single allegation against the applicant to satisfy

the pre-requirements of Section 305 of Indian Penal Code.

13. Thus, the above referred allegation in the FIR are not

sufficient to attract the alleged offence against the applicant

particularly, in absence of any allegation that the applicant had

intentionally instigated or aided the deceased to commit suicide.

Thus, according to us even prima-facie the First Information Report

does not disclose commission of offence by the applicant as alleged.

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14 Having observed so we are of the considered view that

even if the applicant is forced and compelled to face the trial it

would be a futile exercise, as from the allegations it is unlikely that

the prosecution would culminate into conviction of the applicant.

Thus, to secure the ends of justice, we are of the firm view that

present case is fit for exercise of inherent powers of this Court under

Section 482 of Code of Criminal Procedure. Accordingly we pass the

following order.

ORDER

i) The criminal application is allowed.

ii) The First Information Report No.533 of 2018, dated

06.10.2018, registered with Police Station, Gadchandur, District

Chandrapur, against the applicant for the offence punishable under

Section 305 of the Indian Penal Code, is hereby quashed and set

aside.

iii) The application is dispose of, no order as to costs.

iv) It is directed that Shri Prashant Khobragade, learned counsel who is appointed from the Legal Aid Committee is entitled to Rs.750/- towards expenses from the Legal Aid Committee.

                     JUDGE                                           JUDGE

nd.thawre