Vijay Vishnupanth Kamble And Anr vs The State Of Maharashtra And Anr
2022 Latest Caselaw 4 Bom

                                     1            963 cri. application 1949-20.odt

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD


            CRIMINAL APPLICATION NO. 1949 OF 2020


1.   Vijay Vishnupanth Kamble,
     Age : 39 years, Occu.: Service,
     R/o.: At Rural Hospital, Shrigonda,
     Tal. Shrigonda, District : Ahmednagar

2.   Vaishali Vijay Kamble,
     Age : 29 years, Occ.: Housewife,
      R/o.: At Rural Hospital, Shrigonda,
     Tal. Shrigonda, District : Ahmednagar              ....     APPLICANTS

                      VERSUS

1.   The State of Maharashtra

2.   Prashant Chandrakant Belamkar,
     Age : 35 years, Occu.: Agril.,
     R/o.: Rural Hospital, Quarter,
     Room No. 7, Shrigonda, Tq. Shrigonda,
     District : Ahmednagar                              ...RESPONDENTS


                                 ...
             Advocate for Applicants : Mr. S. P. Brahme
          AGP for Respondent no.1-State : Mr. M. M. Nerlikar
          Advocate for Respondent no.2 : Mr. S. G. Sonwane
                                ....


                              CORAM : V. K. JADHAV AND
                                         SANDIPKUMAR C. MORE, JJ.

             RESERVED ON                 : 8th DECEMBER, 2021.
             PRONOUNCED ON : 3rd JANUARY, 2022.
                                         ..





                                     2      963 cri. application 1949-20.odt

ORDER : (PER : SANDIPKUMAR C. MORE, J.)

1. By consent of the parties, heard fnally at the stage of

admission.

2. Leave to correct amended prayer clause to the extent of

mentioning sessions case number.

3. The applicants, who are original accused nos.2 and 3, are

seeking quashing of C.R.No. 666 of 2020, registered with Shrigonda

Police Station, Tal. Shrigonda, District : Ahmednagar, for ofence

punishable under Sections 376 and 306 read with 34 of IPC.

4. During pendency of this application, charge sheet in the

present crime, is submitted and therefore, the applicants are also

seeking quashing of the criminal proceedings, arising out of the

aforesaid crime bearing RCC No.292 of 2021, pending before the

learned Judicial Magistrate (First Class), Shrigonda, District :

Ahmednagar.

5. The FIR lodged by present respondent no.2 i.e. informant

recites that he is residing at Shrigonda in Rural Hospital Quarters

along with his wife Shashikala Khandu Bansode, who is a nurse in

the said Rural Hospital at Shrigonda. His brother-in-law, Suryakant

Khandu Bansode, resides at Malingar, Akluj, Taluka Malshiras,

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District : Solapur. Daughter of his brother-in-law, named Sonali i.e.

victim and deceased in the present crime, used to come to their

house at Shrigonda during her school vacations. Present applicant

no.1 resides in quarter no.5, situated in front of his house along

with his wife Vaishali i.e. present applicant no.2. Brother of

applicant no.1 i.e. co-accused Dhananjay Vishnu Kamble used to

come to their house. Co-accused Dhananjay resides at Karmala

and is in service with Ahmednagar District Central Cooperative

Bank, Branch Javala, Distrtict : Jamkhed. Since last one year, co-

accused Dhananjay used to call Sonali on her cell phone as well as

on the cell phone of applicant no.2, he was also sending message

on whats-app to Sonali and therefore, there was an intimate

relationship between them. Dhananjay was insisting Sonali to

come to Shrigonda and when she used to come at Shrigonda, he

used to meet her in between at Karmala at his room and thereafter

she used to come to Shrigonda.

6. On 13/06/2020, Sonali had come to house of the informant at

Shrigonda from Malinagar, Akluj. Thereafter, on 23/07/2020 at

about 4.00 to 5.00 p.m. she suddenly started crying and therefore,

the informant and his wife-Shashikala asked her for the reason.

Sonali told them that since last one year co-accused Dhananjay

made friendship with her and suppressed the fact that he is having

4 963 cri. application 1949-20.odt

a wife and two children. Co-accused Dhananjay on the false

promise of marriage, established sexual relations with her at his

Karmala house. As such, from 13/06/2020 Dhananjay by coming to

Shrigonda forcibly kept sexual relations with her and on her refusal,

he used to threaten her of dire consequences. Ultimately,

Dhananjay quarreled with her and refused to marry with her and

thus, cheated Sonali. On hearing so, the informant and his wife

somehow pacify Sonali and then called the present applicants to

their house and narrated them as to how co-accused Dhananjay

betrayed Sonali. However, the applicants instead of solacing

Sonali, blamed her by saying that as to why she kept physical

relations with Dhananjay despite knowing that he had a wife and

two children. The applicants also conducted urine test of Sonali

and on getting knowledge that she was not pregnant, held her

guilty by taking side of coo-accused Dhananjay. Due to such

behaviour of applicants, Sonali got frustrated. Then, on next day

i.e. 24/07/2020 when wife of the informant had gone to her work in

the Rural Hospital, and he had gone out along with his two children

at about 11.30 a.m., Sonali alone was in the house. At about 11.45

a.m. when wife of the informant came home, the front door was

bolted from inside. When there was no response of Sonali from the

house, wife of the informant called people nearby and when the

door was opened from upper shutter of the door, she saw that

5 963 cri. application 1949-20.odt

Sonali had hanged herself. As Sonali was breathing slowly at the

relevant time, she was immediately taken to hospital of one doctor

Hole, but during treatment in ICU, she succumbed at about 1.45

hours on 25/07/2020.

7. Learned counsel for the applicants submits that applicants are

falsely involved in the crime as the main allegations are only

against co-accused Dhananjay. Further, the present applicants

cannot be charged for the ofence punishable under Section 376 of

IPC as there are no ingredients of ofence under Section 376 of IPC

available against the present applicants. He further submits that

Sonali has committed suicide mainly due to betrayal at the hands

of co-accused Dhananjay and therefore, the applicants cannot be

connected with the present crime as they did not play any active

role in the commission of suicide by Sonali. In support of his

submission, the learned counsel for the applicants heavily relied

upon the judgment of Hon'ble Apex Court in the case of Arnab

Manoranjan Goswami vs. State of Maharashtra and others,

(2021) 2 SCC 427.

8. On the contrary, learned APP as well as learned counsel for

respondent no.2, have strongly resisted the application and as per

their submissions, Sonali committed suicide mainly because the

6 963 cri. application 1949-20.odt

present applicants blamed herf by saying that why she slept with

co-accused Dhananjay despite knowing that he was having a wife

and children. Both of them further submitted that the very fact of

blaming Sonali by the applicants in fact abetted commission of her

suicide as there were direct allegations on her chastity.

9. Admittedly, from perusal of the aforesaid FIR and also the

charge sheet, it is evident that Sonali has committed suicide by

hanging herself when she was alone in the house of the informant-

respondent no.2. Post-mortem report on record also supports the

said fact. It is signifcant to note that the prosecution is attributing

the act of commission of suicide by Sonali to the blaming at the

hands of the present applicants and also to the fact that the

applicants got done her urine test to ascertain whether she was

pregnant or not. So far as ofence punishable under Section 376 of

IPC is concerned, the present applicants cannot be held responsible

as the alleged forcible sexual relations were between Sonali and co-

accused Dhananjay only. Moreover, there is nothing on record to

show that the present applicants in any manner, were aware of

such sexual relations prior to 23/07/2020. Therefore, in absence of

such knowledge, no ofence under Section 376 of IPC is made out

against the present applicants even though the allegations in the

FIR, are taken as it is.

7 963 cri. application 1949-20.odt

10. So far as ofence punishable under Section 306 read with 34

of IPC is concerned the prosecution claims that as the applicants

blamed Sonali for such sexual relationship with co-accused

Dhananjay despite knowing about his family, Sonali committed

suicide. The Hon'ble Apex Court in the above cited case has

discussed as to how and when the quashment of FIR is permitted in

the light of allegations made in the FIR or the complaint. Even in

the case of State of Haryana and others vs. Ch. Bhajan Lal

and others, reported in AIR 1992 SC 604, the Hon'ble Apex

Court has laid down certain guidelines as to how in what

circumstances the FIR can be quashed by invoking inherent powers

under Section 482 of Cr.P.C. As per those guidelines, general

principle is set that whether allegations made in the FIR or the

complaint, even if they are taken as at their face value and

accepted in their entirety, do not prima facie constitute any ofence

or make out case against the accused, the proceedings may be

quashed.

11. In Arnab Manoranjan Goswami (supra) the Hon'ble Apex

Court has observed in paragraph nos.48, 49, 50, 51 and 55 as

follows :

"48. Madan Mohan Singh v. State of Gujarat [JT 2010(10) SC 641] was specifcaaal a case which arose in the context of a petition under Section 482 of the Cr.P.C. where the High Court

8 963 cri. application 1949-20.odt

had dismissed the petition for quashing an FIR registered for offences under Section 306 and 29t4()) of the IPC. In that casen the FIR was registered on a compaaint 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 fxed 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 V S 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 ofence much less under Section IPC. We could not fnd 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.

11. In spite of our best eforts and microscopic examination of the suicide note and the FIR, all that we fnd 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

9 963 cri. application 1949-20.odt

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 him not to take the keys of the car and to keep the keys of the car in the ofce itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. Dealing with the provisions of Section 306 of the IPC and the meaning of abetment within the meaning of Section 107, the Court observed:

12. In order to bring out an ofence under Section 306 IPC specifc 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 ofence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for ofence under Section 306 IPC either in the FIR or in the so-called suicide note."

The Court noted that the suicide note expressed a state of anguish of the deceased and "cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide". Reversing the judgement of the High Court, the petition under Section 482 was allowed and the FIR was quashed".

"49t. )efore we evaauate the contents of the FIRn a reference to Section 306 of the IPC is necessarl. Section 306 stipuaates that

10 963 cri. application 1949-20.odt

if a person commits suicide "whoever abets the commission of such suicide" shaaa be punished with imprisonment extending up to 10 lears. Section 107 is comprised within Chapter V of the IPCn which is titaed "Of Abetment". Section 107 provides:

"107. Abetment of a thing.--A person abets the doing of a thingn who--

First.--Instigates anl person to do that thing; or

Secondal.--Engages with one or more other person or persons in anl conspiracl for the doing of that thingn if an act or iaaegaa omission takes paace in pursuance of that conspiracln and in order to the doing of that thing; or Thirdal.--Intentionaaal aidsn bl anl act or iaaegaa omissionn the doing of that thing.

Expaanation 1.--A person whon bl wiaafua misrepresentationn or bl wiaafua conceaament of a materiaa fact which he is bound to discaosen voauntarial causes or procuresn or attempts to cause or procuren a thing to be donen is said to instigate the doing of that thing.

Expaanation 2.--Whoevern either prior to or at the time of the commission of an actn does anlthing in order to faciaitate the commission of that actn and therebl faciaitates the commission thereofn is said to aid the doing of that act.

50. The frst segment of Section 107 defnes abetment as the instigation of a person to do a particuaar thing. The second segment defnes it with reference to engaging in a conspiracl with one or more other persons for the doing of a thingn and an act or iaaegaa omission in pursuance of the

11 963 cri. application 1949-20.odt

conspiracl. Under the third segmentn abetment is founded on intentionaaal aiding the doing of a thing either bl an act or omission. These provisions have been construed specifcaaal in the context of Section 306 to which a reference is necessarl in order to furnish the aegaa foundation for assessing the contents of the FIR. These provisions have been construed in the earaier judgements of this Court in State of West )engaa vs. Oriaaa Jaiswaan Randhir Singh Vs. State of Punjabn Kishori Laa vs State of MP ("Kishori Laa") and Kishnangiri Mangaaggiri Goswami Vs. State of Gujarat. In Amaaendu Paa vs. State of WEst )engaan Justice Mukundakam Sharman J.n speaking for a two judge )ench of this Court and having adverted to the earaier decisionsn observed: (SCC P. 712n para 12)

"12...It is aaso to be borne in mind that in cases of aaaeged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Mereal on the aaaegation of harassment without there being anl positive action proximate to the time of occurrence on the part of the accused which aed or compeaaed the person to commit suiciden conviction in terms of Section 306 IPC is not sustainabae."

51. The Court noted that before a person mal be said to have abetted the commission of suiciden thel "must have paaled an active roae bl an act of instigation or bl doing certain act to faciaitate the commission of suicide." Instigationn as this Court head in Kishori Laan "aiteraaal means to provoken inciten urge on or bring about bl persuasion to

12 963 cri. application 1949-20.odt

do anlthing". In S. S. Chheena v. Vijal Kumar Mahajann a two judge )ench of this Courtn speaking through Justice Daaveer )handarin observed: (SCC p. 19t7n para 25)

"25. Abetment invoaves a mentaa process of instigating a person or intentionaaal aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suiciden conviction cannot be sustained. The intention of the aegisaature and the ratio of the cases decided bl this Court is caear that in order to convict a person under Section 306 IPC there has to be a caear mens rea to commit the offence. It aaso requires an active act or direct act which aed 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".

55. More recental in M. Arjunan v. Staten a two judge )ench of this Courtn speaking through Justice R. )anumathin J.n eaucidated the essentiaa ingredients of the offence under Section 306 of the IPC in the foaaowing observations: (SCC p. 317n para 7)

"7. The essentiaa 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 accusedn howevern insuating the deceased bl using abusive aanguage wiaa notn bl itseafn constitute the abetment of suicide. There shouad be evidence capabae of suggesting that the accused intended bl

13 963 cri. application 1949-20.odt

such act to instigate the deceased to commit suicide. Unaess the ingredients of instigation/abetment to commit suicide are satisfed the accused cannot be convicted under Section 306 IPC".

12. Thus, from the above said observations of the Hon'ble Apex

Court in the aforesaid judgment as well as the other judgments

referred therein, it appears that the Hon'ble Apex Court expect from

this court to frst evaluate prima facie the allegations in the FIR

before exercising the quashing power under Section 482 of Cr.P.C.

Further, the Hon'ble Apex Court has also observed that in which

case and in what manner, Section 306 of IPC is to be interpreted.

In the instant case, the act of betrayal of deceased Sonali, is

caused by co-accused Dhananjay, who by suppressing the

existence of his family, established sexual relationship with her on

false promise of marriage. The role of the present applicants is

only limited to what they said to Sonali after she disclosed the

alleged ofence of rape committed by co-accused Dhananjay. The

present applicants have only blamed Sonali as to why she

continued relationship with co-accused Dhananjay, despite knowing

that he had a wife and two children. Though it has come on record

that they used flthy language to insult her by saying why she slept

with Dhananjay despite of his marriage with another lady, but it is

already made clear by the Hon'ble Apex Court in the case of M.

14 963 cri. application 1949-20.odt

Arjunan v. State, that the act of the accused, however, insulting the

deceased by saying the abusive language by itself, will not

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. Though these applicants

made Sonali to perform her urine test to verify whether she was

pregnant but such act cannot be said to be done with intention to

instigate to commit suicide. It is already observed in many cases

either by this court or the Hon'ble Apex Court that to constitute the

ofence under Section 306 of IPC there must be a positive or active

role of the accused in the commission of suicide of the victim. Here

in this case there is no direct role of the present applicants but the

main role appears to be of co-accused Dhananjay, who under

pretext of marriage took disadvantage of Sonali and indulged in

sexual relationship with her. Further, it appears that the present

applicants only came to know about the alleged sexual relationship

between Sonali and co-accused Dhananjay when on earlier day of

incident it was disclosed to them by Sonali. The law on the point of

Section 306 of IPC is settled to such an extent that even if one

person says to other person that "go and die" and the other person

commits suicide, still the ofence under Section 306 of IPC does not

constitute.

15 963 cri. application 1949-20.odt

13. Therefore, considering all the aforesaid aspects and the

various observations of the Hon'ble Apex Court in the aforesaid

judgment, we are of the opinion that even if the FIR in the present

case is held to be proved, no ofence under Section 306 of IPC

against the present applicants is made out. There is no question of

applying Section 376 of IPC against the present applicants as

already stated earlier. Under such circumstances, there is no

triable case against the present applicants. Hence, it would be

abuse of process of law if the trial of aforesaid crime is allowed to

be continued against the applicants. Therefore, we fnd it suitable

to exercise inherent powers under Section 482 of Cr.P.C. to quash

the FIR and criminal proceedings to the extent of present applicants

only. Thus, we pass the following order :

ORDER

I) The criminal application is hereby allowed in terms of prayer clause " C & C-1 " to the extent of present applicants only.

II) The criminal application accordingly stands disposed of.

(SANDIPKUMAR C. MORE, J.)                                (V. K. JADHAV, J.)


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