Jairam S/O. Suryabhan Hapte vs The State Of Maharashtra And Anr
2022 Latest Caselaw 8948 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


              CRIMINAL APPLICATION NO.3898 OF 2019
                             WITH
              CRIMINAL APPLICATION NO.1933 OF 2022


 Jairam S/o Suryabhan Hapte,
 Age-32 years, Occu:Agriculture,
 R/o- At Post-Ardh Pimpri,
 Tq-Georai, District-Beed.
                                                      ...APPLICANT
        VERSUS

 1) The State of Maharashtra,
    Through the Police Inspector,
    Kingaon Police Station,
    Tq-Renapur, District-Latur,

 2) Kshitija Wd/o Nilkanth Lahane,
    Age-29 years, Occu:Household,
    R/o-Lahanewadi, Tq-Renapur,
    District-Latur,
    At present residing at - Bodhegaon,
    Tq-Shevgaon, District-Ahmednagar.
                                                      ...RESPONDENTS

                 ...
    Mr.Aniket P. Sonpethkar Advocate for Applicant in Criminal
    Application No.3898 of 2019.
    Mr.A.M. Phule, A.P.P. for Respondent No.1 - State.
    Mr.S.G. Munde Advocate for Respondent No.2 in Criminal
    Application No.3898 of 2019 and for Applicant in Criminal
    Application No.1933 of 2022.
                 ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       RAJESH S. PATIL, JJ.

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DATE OF RESERVING JUDGMENT : 19th AUGUST 2022

DATE OF PRONOUNCING JUDGMENT : 8th SEPTEMBER 2022

JUDGMENT [ PER SMT. VIBHA KANKANWADI, J. ] :

1. Criminal Application No.1933 of 2022 moved by original

complainant - present respondent No.2 for listing Criminal

Application No.3898 of 2019 for final hearing, stands allowed

and disposed of.

2. Rule. Rule made returnable forthwith. Heard the learned

Advocates for the parties finally, by consent.

3. Present Criminal Application No.3898 of 2019 has been

filed by original accused No.4 invoking the inherent powers of

this Court under Section 482 of the Code of Criminal Procedure

for quashing the First Information Report (for short "FIR")

bearing Crime No.55 of 2019 registered with Kingaon Police

Station, Taluka-Renapur, District-Latur for the offence punishable

under Section 306 read with Section 34 of the Indian Penal

Code, as against the present applicant, and by way of

amendment the applicant has prayed for quashment of R.C.C.

No.143 of 2019 pending on the file of learned Judicial Magistrate

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First Class, Renapur in pursuance of charge-sheet bearing No.43

of 2019 as against the present applicant.

4. The applicant is a School Committee President of Zilla

Parishad Primary School, Ardh Pimpri, Taluka-Georai, District-

Beed. He states that President of the School Committee is

selected from the parents of the children, who are taking

education in Zilla Parishad school. Respondent No.2 is the

informant who had lodged the said FIR. Her husband, deceased

Nilkanth Dattu Lahane was serving as a school teacher in Zilla

Parishad School at Ardh Pimpri. Nilkanth committed suicide on

23rd May 2019 at Lahanewadi, Taluka-Renapur, District-Latur.

Respondent No.2 lodged the FIR on 30 th June 2019 which was

against four persons including the present applicant.

5. Learned Advocate for the applicant has vehemently

submitted that now the investigation is over and charge-sheet is

also filed. Perusal of the FIR as well as the entire material in the

charge-sheet is not disclosing the ingredients of the offence

punishable under Section 306 of the Indian Penal Code. Further,

there cannot be a common intention of the accused persons in

causing alleged abetment to commit suicide by deceased

Nilkanth. It is not in dispute that Nilkanth committed suicide and

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the postmortem report gives probable cause of death as "Death

due to cardio-respiratory arrest due to asphyxia due to hanging".

However, immediately after the commission of suicide by

Nilkanth, the said fact was informed to the police on the same

day i.e. 23rd May 2019 by cousin brother of deceased. The name

of the cousin brother of the deceased is Lahudas Ghule, who is

also resident of Lahanewadi. The copy of the said information

which was treated as intimation under Section 174 of the Code

of Criminal Procedure, has been annexed to the charge-sheet. It

states that Nilkanth had come to his native place at Lahanewadi

in summer vacation. He was addicted to liquor. He was ill about 2

to 3 days prior to 23rd May 2019 and therefore, he had taken

treatment at Government Hospital, Latur. Nilkanth came home

on 22nd May 2019 but since then he was under the influence of

liquor. Under the influence of liquor, as well as since he was

alone, Nilkanth came out of the house and committed suicide

around 3.30 p.m. on 23rd May 2019 by hanging himself to a tree.

It was specifically mentioned that they are not suspecting any

foul play or have no grievance against anybody.

6. Learned Advocate for the applicant further submitted that

the prosecution then comes with the case that on the next day

i.e. on 24th May 2019 when the informant tried to keep the

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service book in the bag of the deceased, in the said bag she

found an application written by the deceased, which the

prosecution is now treating as suicide note of the deceased. Even

if we consider the alleged suicide note as it is, it has no

connection with the act of one accused with another co-accused.

It is alleged that everyone of them had acted independently. As

regards the present applicant - accused No.4 is concerned, it is

stated that he is intentionally harassing the deceased and

behaving selfishly and used to threaten that he will close down

the school. The statements of the witnesses also do not say

anything more than this. Under such circumstance, it would be a

futile exercise to ask the applicant to face the trial. The FIR,

charge-sheet as well as proceedings of R.C.C. No.143 of 2019

pending on the file of Judicial Magistrate First Class, Renapur

deserve to be quashed and set aside as against the present

applicant.

7. Per contra, the learned APP and learned Advocate for

respondent No.2 strongly opposed the application and submitted

that there is ample evidence against the applicant. Said cousin

brother of the deceased might not be knowing that the deceased

has left suicide note and therefore the said information might not

have been given by him. But now there is evidence showing that

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the applicant had abetted the commission of suicide and the

suicide note will have to be considered at this stage.

8. Learned Advocate for Respondent No.2 has relied on the

decision in Didigam Kikshapathi and another vs. State of

A.P., 2008 ALL MR (Cri) 870 (S.C.), wherein it has been

observed thus:-

"The suicide note clearly refers to the background in which the victim took the extreme step of taking away his own life by committing suicide. It is not a case where there is no reference to any act by the accused. The suicide note clearly refers to the acts of the accused-appellant and the roles played by them. Therefore, the High Court rightly rejected the prayer of exercise of power under Section 482 of the Code."

9. Learned Advocate for respondent No.2 also relied on the

decision in Rajeev Kourav vs. Baisahab and others

(Criminal Appeal No.232 of 2020, decided by the Hon'ble

Apex Court on 11th February 2020), wherein similar view was

taken. Further, learned Advocate for respondent No.2 relied on

the decision in Praveen Pradhan vs. State of Uttaranchal

and another, (2012) 9 Supreme Court Cases 734, wherein

it has been observed thus:-

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" A plain and simple reading of the suicide note makes it crystal clear that the appellant had not just humiliated and insulted the deceased on one occasion. In fact, it is evident that the appellant perpetually humiliated, exploited and demoralised the deceased, which hurt his self-respect tremendously. The words used are, to the effect that the appellant always hurts the self-respect of the deceased and he was always scolding him. The appellant always made attempts to force him to resign. The statements recorded by the police under Section 161 CrPC, particularly one made by KS, widow of the deceased and also those of various other family members, corroborate the version of events, as given in his suicide note."

10. Further, learned Advocate for respondent No.2 has also

placed reliance on the observations in Didigam Kikshapathi

and another vs. State of A.P., (supra), as regards the powers

to be used by the High Courts under Section 482 of the Code of

Criminal Procedure, which reads thus:

" The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire

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facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage."

" It is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. "

11. The first and foremost fact that is undisputed, is that

deceased Nilkanth has committed suicide. He was at

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Lahanewadi, which is his native place and as per the prosecution

story, he had gone to his native place in summer vacation. The

contents of the information given by the cousin brother of the

deceased, namely, Lahudas Ghule, which has been treated as an

intimation under Section 174 of the Code of Criminal Procedure,

have already been narrated earlier. In order to support the said

statement of Lahudas Ghule what is available in the record is the

Indoor Bill issued by the Government Medical College and

General Hospital, Latur, dated 22nd May 2019. It shows that

Nilkanth was admitted on 20th May 2019 and was discharged on

22nd May 2019. Thus said intimation under Section 174 of the

Code of Criminal Procedure stood corroborated. Now as regards

Nilkanth's addiction to liquor is concerned, it is stated in the

application itself given by Lahudas Ghule. But, in his statement

under Section 161 of the Code of Criminal Procedure, said

Lahudas Ghule has kept silence about his own intimation to the

Police on 23rd May 2019. In the FIR, even the informant has

stated that her husband informed her on 19 th May 2019 that he

is unwell. She states that on 21 st May 2019 she had gone to

Bodhegaon to take service-book of her husband. In Bodhegaon,

it appears that, the informant has taken a room on rent and

when she found that some other lock is put to the said room,

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she made inquiry about it with the landlady. It was then told that

in absence of Nilkanth as well as informant, one Prakash

Khedkar, Somnath Khedkar and Arjun Gade have put the said

lock. Thereafter the informant waited there. After some time

those three persons came there and started asking the informant

as to where her husband is. When she told that he is taking

treatment in the hospital, those persons abused her and made

phone call to Nilkanth, stating that if he comes there then only

the wife would be allowed to go. Then the informant says that

she told her husband that he should not worry and take

treatment. Thereafter on 22nd May 2019 the husband informed

her that he has been discharged from the hospital and he went

to the native place along with his sister. The informant requested

those three persons to permit her to take service book of her

husband from the room. At that time, by giving threat to

Nilkanth and her, they opened the door and she took the service-

book. Thereafter, she received information about the commission

of suicide by Nilkanth and therefore, she went to Lahanewadi.

After the postmortem, the body was handed to relatives of

Nilkanth and his last rites were performed. Then, on the next

day the informant saw the bag in which she had brought the

service-book. She states that there was an application written by

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her husband to Chief Officer, Zilla Parishad, Beed. She further

states that there was also one chit in the name of Police

Inspector, Kingaon, wherein it was written that:-

" ek- iksfyl fufj{kd lkgsc] iksfyl LVs'ku] fduxkao-

vtZnkj % ygkus fuGdaB nRrq ygkusokMh-

egksn;] vki.kkl fouarhiwoZd vtZ lknj dfjrks fd ek>h ekufldrk vR;ar <klkGY;k.ks eh vkRegR;sl izo`Rr gksr vkgs rjh T;k yksdkadMqu ek>k Hkkofud] ekufld] vkfFkZd NG >kyk vkgs R;k O;Drhaph ukos eh [kkyh uewn djr vkgs-

loZizFke & 1- izdk'k ukenso [ksMdj ;kus ek>h Vw Oghyj xkMh usysyh vkgs- 2- lkseukFk [ksMdj O;ktkpk O;ogkj d#u माझया e`R;ql tckcnkj vkgs-

3- xkMs cks/ksxko gk okjaokj माझया iRuhl VkWLPkZj d#u iSls ekxrks o ?kjkl dqywi yko.;kP;k /keD;k nsrks-

4- 'kk- O;- l- v/;{k eqn~nke ijs'kku d#u LokFkZ lk/k.;kpk iz;Ru djrks vkf.k Eg.krks 'kkGsr vkY;koj 'kkGsyk dqywi Bksdrks-

lkgsc vki.kkl ek>h fouarh vkgs fd माझयाoj vkysyh osG brj f'k{kdkoj ;sow u;s fgp vis{kk vkf.k eyk feG.kkjh jDde माझया

eqykyk n~;koh fgp vis{kk- lkgsc माझया eqykauk rjh U;k; n~;kok-

lgh "

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12. If we consider the FIR and the other contents of the

charge-sheet, it appears that Nilkanth had come down to

Lahanewadi on 17th May 2019 and he committed suicide on 23 rd

May 2019. Even if for the sake of argument we accept that when

he came from Bodhegaon to Lahanewadi on 17 th May 2019, he

had written that chit, yet there is absolutely no proximity. It

cannot be taken as the circumstance or background in which

Nilkanth had taken extreme step of taking away his own life. He

was unwell and intentionally, it can be seen that, the informant

has not disclosed what was the ailment of her husband. She has

also kept silence where she was from 21 st May 2019 till 23rd May

2019, but it will have to be inferred that she was at Bodhegaon.

But it is not her case that she was restrained by those three

persons i.e. Prakash Khedkar, Somnath Khedkar and Arjun Gade.

But then, the informant has not taken the name of present

applicant as the person who was present at Bodhegaon and

given threat.

13. The aforesaid suicide note, as regards the applicant is

concerned, states that he was intentionally harassing the

deceased, acting selfishly and used to give threats that he would

put lock to the school, that means he would close down the

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school. Statement of headmaster from the concerned school,

Madhukar Babasaheb Shembade, has been recorded under

Section 161 of the Code of Criminal Procedure. In fact deceased

Nilkanth was the teacher only, but headmaster is superior person

and responsible to run the school. However, in his statement, the

headmaster has not stated that present applicant had ever given

threat to close down the school to him. The headmaster would

be the person who would be more concerned if the school is

closed down. What was the acts of harassment by the applicant

have not been stated in the suicide note nor the same have been

stated by any of the witness in statement under Section 161 of

the Code of Criminal Procedure. The ratio laid down in the above

referred authorities cannot be denied, however the facts of the

present case are different. Even if we take the suicide note as it

is, it cannot be said to be relevant fact as contemplated under

Section 32(1) of the Indian Evidence Act. There is absolutely no

evidence in the entire charge-sheet which will demonstrate that

there would have been a common intention amongst the co-

accused and the applicant.

14. It can be useful to refer the decision in M. Arjunan vs.

State, [(2019) 3 SCC 315], wherein in Para-7 of the Judgment

the Hon'ble Apex Court has held thus :

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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 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."

15. Another decision of the Hon'ble Apex Court which can be

useful, is in S. S. Chheena vs. Vijay Kumar Mahajan, (2010)

12 SCC 190, wherein in Para 25 of the Judgment, it has been

observed that:

" 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 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. "

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16. In Rajesh vs. State of Haryana, (2020) 15 SCC 359,

the Hon'ble Apex Court, in Para 9 of the Judgment, has held

thus:

" 9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview 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 instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. "

17. If the contents of said suicide note as regards the applicant

are considered as it is, then the act of harassing the deceased,

acting selfishly and giving threats to put lock to the school,

cannot be taken as an instigation under Section 107 of the

Indian Penal Code. Further, there is no proximity. Even as per

the informant, deceased alone went to Lahanewadi on 17 th May

2019 and then he committed suicide on 23 rd May 2019. It has

not been stated by the informant or anybody that during the

period between 17th May 2019 to 23rd May 2019, the applicant

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has, in any way, harassed and / or threatened the deceased. At

the cost of repetition, it can be said that even as per the

intimation given by the cousin brother of the deceased to the

Police, deceased was addicted to liquor and since he was alone

at his native place and also unwell, under the influence of liquor

he has committed suicide.

18. It would be a futile exercise to ask the applicant to face the

trial with such kind of evidence and therefore as the case is

within the parameters laid down in State of Haryana and

others vs. Ch. Bhajan Lal and others, reported in AIR 1992

SC 604, this is a fit case where we should exercise our powers

under Section 482 of the Code of Criminal Procedure. Hence

following order:-

ORDER

(I) The Application stands allowed.

(II) The First Information Report bearing Crime No.55 of 2019

dated 30th June 2019 registered with Kingaon Police Station,

Taluka-Renapur, District-Latur for the offence punishable under

Section 306 read with Section 34 of the Indian Penal Code,

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subsequent charge-sheet No.43 of 2019, and R.C.C. No.143 of

2019 pending on the file of the learned Judicial Magistrate First

Class, Renapur, stand quashed and set aside as against the

present applicant, and if the case has been committed to the

Court of Sessions, then the said Sessions Case stands quashed

and set aside as against the present applicant.

(III) Rule made absolute in above terms.

 [RAJESH S. PATIL]                [SMT. VIBHA KANKANWADI]
      JUDGE                                 JUDGE

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