Balasaheb S/O. Sambhajirao ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 14432 Bom

                                 1               CR.APPLN-97-2020

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                    CRIMINAL APPLICATION NO. 97 OF 2020

1.            Balasaheb s/o Sambhajirao Kharat,
              Age : 30 years, Occ : Government Service,
              R/o. Ambad Road, Gokuldham Society,
              Indewadi Row House, Near Water Tank,
              Jalna, Taluka and District Jalna.

2.            Sambhajirao s/o Baburao Kharat
              Age: 54 years, Occu: Agriculture
              R/o: As above.                                    ...Applicants

                        Versus

1.            The State of Maharashtra,
              Through Railway Police Station,
              Aurangabad, District Aurangabad.

2.            Anjanabai Asaram Ingle,
              Age: 69 years, Occu: Household,
              R/o: Rahul Nagar, Near Railway Flyover,
              Jalna, District Jalna.                            ...Respondents


Mr S.S. Gangakhedkar and Mr R.G. Nirmal, Advocates for Applicants
Mr G.O. Wattamwar A.P.P. for Respondent No.1-State
Mr R.A. Tambe, Advocate for Respondent No. 2

                                 CORAM : V.K. JADHAV AND
                                         SHRIKANT D. KULKARNI, JJ.

DATE : 5th OCTOBER, 2021

ORAL JUDGMENT : (PER SHRIKANT D. KULKARNI, J.)

1. Rule. Rule made returnable forthwith. With the consent of both

the sides, heard finally at admission stage.

2. The applicants are seeking relief of quashing of First

Information Report vide C.R. No. 564/2019 registered against the

applicants with Railway Station Police Station, Aurangabad and

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consequent filing of charge sheet vide proceedings of R.C.C. No.

142/2020 for the offence punishable under section 306 read with section

34 of the Indian Penal Code.

3. Anjanabai Asaram Ingle is resident of Rahul Nagar, Near

Railway Flyover, Jalna. Kailas (since deceased) was her son and Ashabai

is her daughter-in-law. On 21.10.2019, there was quarrel between her son

Kailas and daughter-in-law Ashabai and that quarrel was further

aggravated. Kailas assaulted his wife Ashabai and in the said incident,

Ashabai sustained head injury. Ashabai was admitted in the Deepak

Hospital at Jalna. The complaint to that effect came to be lodged at Kadim

Jalna Police Station, Jalna. The applicants alleged to have threatened

Kailas.

4. On 01.11.2019, the applicants had been to the house of

respondent No.2/Anjanabai and threatened Kailas with dire

consequences.

5. On 02.11.2019, Kailas committed suicide on the railway track.

Respondent No.2/Anjanabai came to Railway Police Station, Aurangabad

and lodged F.I.R. alleging that the applicants had instigated her son Kailas

to commit suicide by giving life threats. The applicants are responsible for

the death of her son Kailas. On the basis of the F.I.R. lodged by

respondent No.2/Anjanabai, C.R. No. 564/2019 came to be registered at

Aurangabad Railway Police station under section 306 read with section 34

of I.P.C. dated 06.11.2019.

3 CR.APPLN-97-2020

6. The Investigating Officer after completing all the procedural

aspects, submitted the charge sheet which is registered as R.C.C. No.

142/2020 and the same is in the process of committal.

7. Heard Mr S.S. Gangakhedkar, learned counsel for the

applicants, Mr G.O. Wattamwar, learned A.P.P. for State/Respondent

No.1 and Mr R.A. Tambe, learned counsel for respondent No.2/first

informant.

8. Mr S.S. Gangakhedkar, learned counsel for the applicants

submitted that the story tried to be put forth by the prosecution through the

first informant about alleged life threats given by the applicants and in view

of apprehension to the life, Kailas committed suicide, has no foundation at

all. The prosecution story is concocted and fabricated. He submitted that

F.I.R. in question did not clearly spell out any direct role alleged against

the applicants attributing commission of an offence under section 306 of

I.P.C.. He submitted that even if allegations levelled against the applicants

in the F.I.R. accepted at its face value, do not constitute an offence under

section 306 of I.P.C. He submitted that there is absolutely no material

placed on record with the charge sheet to speak about intention of the

applicants to aid or to instigate or to abet the deceased to commit suicide.

He submitted that it is brought on record through the statement of wife of

deceased that he was mentally disturbed and not in a fit state of mind. He

was not doing any work and in a disturbed state of mind. The deceased

had committed suicide. Mr S.S. Gangakhedkar, learned counsel submitted

4 CR.APPLN-97-2020

that criminal prosecution launched against the applicants is liable to be

quashed. It would be an abuse of process of law in asking the applicants

to face the trial when there is no iota of evidence to attract section 306 of

I.P.C.

9. Mr S.S. Gangakhedkar, learned counsel for the applicants has

placed his reliance on the following citations :-

(i) Gurucharan Singh Vs. State of Punjab reported in (2020) 10 SCC 200

(ii) Sanju alias Sanjay Singh Sengar Vs. State of M.P. reported in AIR 2002 SC 1998

10. Mr G.O. Wattamwar, learned A.P.P. for the State/Respondent

No.1 submitted that there is sufficient evidence against the applicants to

attract section 306 read with section 34 of I.P.C. He submitted that the

applicants had given life threats to the deceased. The deceased could not

bear the same and in apprehension of his life threat, he has committed

suicide. The Investigating Officer has collected sufficient material during

the course of investigation. It is not a fit case to quash the proceedings.

The applicants are liable to face the trial.

11. Mr Tambe, learned counsel for respondent No. 2/first informant

strongly opposed to allow this application. He argued on the lines of

submissions advanced by the learned A.P.P. Mr Tambe, learned counsel

submitted that there is enough evidence on record against the applicants.

12. We have considered the submissions of Mr S.S.

Gangakhedkar, learned counsel for the applicants, Mr G.O. Wattamwar,

5 CR.APPLN-97-2020

learned A.P.P. for the State/Respondent No.1 and Mr R.A. Tambe,

learned counsel for respondent No.2/first informant.

13. Perused a copy of the F.I.R. bearing Crime No. 564/2019

registered with Railway Police Station, Aurangabad and copy of charge

sheet and annexures thereto.

14. It is undisputed position that before the unfortunate incident of

committing suicide by Kailas on 02.11.2019, there was quarrel between

Kailas and his wife Ashabai. The deceased had assaulted his wife

Ashabai. Ashabai sustained serious head injury and she was admitted in

Deepak Hospital at Jalna.

15. There are allegations in the F.I.R. that the applicants had given

life threats to Kailas due to the incident of beating to Ashabai. The

applicants alleged to have given life threats to the deceased on

21.10.2019 and the deceased had committed suicide on 02.11.2019. Even

for the sake of argument, if it is accepted that the applicants had given life

threats to the deceased due to beating to their sister Ashabai (wife of

Kailas), can it be said to be abetment. Applicant No.1 is brother and

applicant No. 2 is father of Ashabai.

16. 'Abetment of a thing' has been defined under Section 107 of the

Indian Penal Code, which 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

6 CR.APPLN-97-2020

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 2 which has been inserted along with section 107 reads as under :

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."

17. In view of citation in case of M. Mohan Vs. State, represented

by the Deputy Superintendent of Police, 2011 (3) Mh.L.J. (Cri.) 1271,

abetment is the 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.

18. We have gone through the statements of witnesses and other

materials filed along with the charge sheet. Most of the statements of

witnesses fall in the category of hearsay regarding life threats allegedly

given by the applicants. The statement of wife of deceased is important.

On perusing the same, it is revealled that her husband Kailas was

mentally ill person and even before their marriage, his treatment was

going on. The conduct of her husband was abnormal and once her

7 CR.APPLN-97-2020

husband Kailas had left house by saying that he would commit suicide.

She came to know about suicidal death of her husband when she was fully

recovered.

19. On going through the material placed on record along with the

charge sheet by the investigating agency, there is no iota of evidence to

attract section 306 of I.P.C. against the applicants. There is no material on

record to show that the applicants instigated the deceased either by act of

omission or commission or persistent harassment. There is no mens rea

to commit the said crime.

20. In case of Gurucharan Singh Vs. State of Punjab (supra), it is

held by the Hon'ble Supreme Court that in order to give finding of

abetment under section 107 of I.P.C., accused should instigate a person

either by act of omission or commission, and only then a case of abetment

is made out. In order to prove mens rea, there has to be something on

record to establish or show that accused had guilty mind and in

furtherance of that state of mind, he abetted crime. Ingredient of mens rea

cannot be assumed to be ostensibly present but have to be visible and

conspicuous.

21. In case of Sanju alias Sanjay Singh Sengar Vs. State of M.P.

(supra) held in given facts that accused telling deceased 'to go and die'.

That itself would not constitute ingredient of 'instigation' - Presence of

mens rea is necessary concomitant of instigation.

8 CR.APPLN-97-2020

22. The Hon'ble Supreme Court in a recent judgment in case of

Shabbir Hussain Vs. The State of Madhya Pradesh and others

(Special Leave to Appeal (Criminal) No.7284 of 2017 SC dated 26.7.2021

has held as under :

" In order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide.

Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 of IPC [Amalendu Pal V. State of West Bengal (2010) 1 SCC 707].

Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605]".

23. The law on quashing of first information report/criminal

proceedings is well settled in view of the landmark decision of the Hon'ble

Supreme Court in case of State of Haryana Vs. Bhajan Lal and others

reported in A.I.R. 1992 S.C. 604. The Hon'ble Supreme Court has set out

the categories of cases in which the inherent powers under section 482 of

9 CR.APPLN-97-2020

the Criminal Procedure code can be exercised. Seven categories are laid

down, wherein inherent powers under section 482 of the Criminal

Procedure Code can be exercised by the High Court. The guidelines laid

down by the Hon'ble Supreme Court in case of State of Haryana Vs.

Bhajan Lal and others (supra) are followed in subsequent decisions even

in the recent case of M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State

of Haryana reported in 2021 SC 1918.

24. On careful examination of the F.I.R. and the evidence collected

during the course of investigation, even if they have taken at their face

value and accepted in its entirety, prima facie does not constitute an

offence punishable under section 306 of I.P.C. against the applicants. The

criminal proceedings seems to have been initiated by the first

informant/respondent No.2 against the applicants only because her son

has committed suicide. It is by way of vengeance.

25. By invoking powers vested in us under Section 482 of Cr.P.C.,

the criminal proceedings against the applicants need to be quashed. If it

is allowed to continue, would be an abuse of process of the Court and the

ends of justice require that the F.I.R. and charge-sheet ought to be

quashed. The saving of the High Court's inherent powers, both in civil and

criminal matters, is designed to achieve a salutary public purpose, which is

that a Court proceedings ought not to be permitted to degenerate into a

weapon of harassment or persecution.

26. In view of the above, there is no propriety to continue the

criminal prosecution against the applicants and put them on trial in the

10 CR.APPLN-97-2020

above factual scenario. It would be an abuse of the process of the Court

and machinery and waste of valuable time of the Court in asking the

applicants to face the trial.

27. In the result, we proceed to pass the following order :

ORDER

(I) The Criminal Application stands allowed in terms of prayer clause (B).

 (II)         Rule made absolute in above terms.




 [ SHRIKANT D. KULKARNI, J. ]                          [ V.K. JADHAV, J. ]



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