Bombay High Court
Vaishali Arun Chikhalkar @ Roundalkar vs State Of Mah. Thr. Pso, Ps Badnera, Dist. ... on 1 December, 2023
Author: Vinay Joshi
Bench: Vinay Joshi, M.W. Chandwani
2023:BHC-NAG:16774-DB
Judgment apl1467.22
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] No. 1467/2022.
Vaishali Arun Chikhalkar @
Roundalkar, Age 42 years,
Occupation -Service, resident
of Samarth Wadi, Badnera Road,
Amravati, Tahsil and District
Amravati. ... APPLICANT.
VERSUS
1.The State of Maharashtra,
through Police Station Officer,
Police Station Badnera,
District Amravati.
2.Anjali Divakar Sisode,
Age 41 years, Occupation
Private, resident of Sitaram
Baba Colony, Khandelwal
Nagar, Amravati. ... NON-APPLICANTS.
---------------------------------
Mr. S.V. Sirpurkar, Advocate for the Applicant.
Ms S.P. Kolhe, A.P.P. for Non-applicant No.1.
Ms A.P. Murrey, Advocate [Appointed] for Non-applicant No.2.
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CORAM : VINAY JOSHI AND
M.W. CHANDWANI, JJ.
DATE : DECEMBER 01, 2023.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
Admit. By consent of the learned Counsel appearing for
respective parties, the matter is taken up for final disposal.
2. By this application, the applicant - Headmistress is
seeking to quash the first information report in Crime No.721/2022
registered by Badnera Police Station, District Amravati for the
offence punishable under Sections 305 and 306 of the Indian Penal
Code. The applicant has invoked the inherent powers of this Court
under Section 482 of the Code of Criminal Procedure and powers
under Article 226 of the Constitution of India seeking appropriate
relief. Undoubtedly the inherent powers conferred upon this Court
entitles to quash a proceeding if it comes to a conclusion that
allowing a proceeding to continue would be an abuse of the process
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of the Court or the ends of justice require that the proceedings are to
be quashed.
3. The facts leading to filing of the application are that on
08.09.2022 informant's school going son Chaitanya, aged 14 years,
was found hanging on ceiling fan at her residence. A handwritten
suicidal note was found, which led the informant mother to lodge the
report. The informant mother stated that the deceased Chaitanya
was studying in 8th standard in a school of which the present
applicant was headmistress. On 08.09.2022, the informant went to
the school to fetch her child on which Chaitanya asked whether she
has been telephonically called by the teacher. The mother replied in
the negative and took her child to the house. In the evening the
informant - mother was away for some domestic reason, but, on
return found Chaitanya hanging to ceiling fan. On the very day a
suicidal note was found blaming the applicant, which resulted into
filing of the first information report.
4. The investigation papers are made available which
contain various statements as well as copy of handwritten suicidal
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note. For the sake of convenience, the contents of the suicidal note
are reproduced hereinbelow :
"... Mother I am not taking this decision at your
instance or at the instance of sister or my friends. I
took the decision to commit suicide at the instance
of headmistress. Today when I was in the class
room, one of my friend called me, and at that time
the headmistress came to the class room on her
round. I was caught by the headmistress, hence, I
was slapped. I was made to stand out of the class
room. Similarly the headmistress caused other 4 to
5 students to stand out of the class room. When I
entered into the class room, my fellow students
laughed at me. I was insulted in presence of the
teacher and other students. I cannot bear the insult,
hence, I am committing suicide. Kindly forgive me."
5. Besides suicidal note, the prosecution is relying on
statements of some students and a teacher. The statement of
students are on the similar lines. Most of them have stated that
Chaitanya has changed his seat in the class room which was seen by
the headmistress while on round. 4 to 5 students including Chaitanya
were made to stand outside the class room for some time. The
headmistress slapped at the back of Chaitanya. After 5 minutes he
was allowed to go back.
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6. While resisting this application, the learned A.P.P. has
attracted our attention to the statement of a student namely
Mohammad dated 23.09.2022. He has similarly stated about the
occurrence. He added that Chaitanya was his close friend. After the
incident Chaitanya said that he was slapped by the headmistress in
presence of students, on which he felt very bad. Chaitanya expressed
that he has been insulted in the class room. Further it is stated that
father of Chaitanya had committed suicide in past and thus,
Chaitanya was under mental trauma. The learned A.P.P. also took us
through the statement of class teacher dated 14.09.2022. She has
stated that the headmistress asked Chaitanya and two others to stand
out of the class room and gave a pat at his back. Within two minutes,
Chaitanya was allowed to come back, but, he was weeping at the
relevant time.
7. The learned Counsel appearing for the applicant
submitted that even if the FIR, charge-sheet and the material
available on record are taken into consideration, the ingredients to
constitute an offence punishable under Section 306 of the Indian
Penal Code is not made out, therefore, the FIR is liable to be
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quashed. The learned Counsel for the applicant has relied on various
decisions of Supreme Court to contend that, if collected material falls
short to make out prima facie case to constitute an offence charged,
the prosecution is required to be quashed. It is submitted that the
essential aspect of abetment as defined under Section 107 of Indian
Penal Code was totally absent. It cannot be said that the applicant
has instigated the deceased to commit suicide. Reference was also
made to number of decisions of this Court to substantiate said
contention.
8. The learned Counsel for the applicant has referred to
Sections 107 and 305 of the Indian Penal Code, as well as took us
through the entire suicidal note. He would submit that scolding by
the headmistress or class teacher is a matter of routine, which cannot
be treated as an abetment to commit suicide. Essentially he would
submit that there is total absence of mens ria. The act of
Headmistress, even if accepted to be true, does not amount to
abetment within the legal framework. In support of said contentions,
he has relied on the decision of Supreme Court in cases of (1) Geo
Varghese .vrs. State of Rajasthan and another - 2021 SCC Online SC
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873, (2) Swamy Prahaladdas .vrs. State of M.P. and another - 1995
SUPP [3] SCC 438, and (3) Sanju .vrs. State of M.P. - (2002) 5 SCC
371.
9. In above referred case of Sanju, the Supreme Court was
considering a situation where the deceased had left behind a suicide
note, wherein it was specifically stated that the accused was
responsible for his death. In the said case, the Supreme Court
considered the liability of the accused to face investigation and
prosecution under Section 306 of the IPC, in the context of Section
107 thereof and it was held that the word "instigate" denotes
incitement or urging to do some drastic or inadvisable action or to
stimulate or incite, further holding that presence of mens rea,
therefore, was a necessary concomitant of instigation. It was found
that in the said case the alleged abusive words were used by the
accused against the deceased, two days prior to the date when the
deceased was found hanging. In these circumstances, the Supreme
Court found it fit to quash the criminal proceedings.
10. Observations made by the Supreme Court in paragraph
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No.25 of the decision in case of S.S. Chheena Vs. Vijay Kumar
Mahajan and another - (2010) 12 SCC 190, are relevant, which reads
as under :
"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."
11. Similarly, in the case of M.Mohan Vs. State Represented
by the Deputy Superintendent of Police - (2011) 3 SCC 626, the
Supreme Court held in the context of abetment as follows: -
"44. 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.
45. The intention of the legislature and the ratio of
the cases decided by this court are clear that in order
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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 this
act must have been intended to push the deceased
into such a position that he/she committed suicide."
12. In order to consider whether section 306 would apply to
the facts in case, one would have to consider whether the essential
ingredients of Section 107 of the Indian Penal Code are disclosed.
Hence, it would be apposite to reproduce Sections 306 and 107 of
the Indian Penal Code. The same read as under;
"306. Abetment of suicide - If any person commits
suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine.
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."
13. In the case of Ramesh Kumar V/s. State of Chhattisgarh -
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[2001] 9 SCC 618, the Apex Court has observed in para as under;
"20. Instigation is to goad, urge forward,
provoke, incite or or encourage to do "an act". To
satisfy the requirement of instigation through it is not
necessary that actual words must be used to that
effect or what constitutes instigation must necessarily
and specifically be suggestive of the consequence. Yet
a reasonable certainty to incite the consequence must
be capable of being spelt out. The present one is not a
case where the accused had by his acts or omission or
by a continued course of conduct created such
circumstances that the deceased was left with no other
option except to commit suicide in which case an
instigation may have been inferred. A word uttered in
the fit of anger or emotion without intending the
consequences to actually follow cannot be said to be
instigation."
14. Recently the Supreme Court in case of Ude Singh and
others .vrs. State of Haryana - 2019 SCC Online SC 924, extensively
surveyed the law in the field and summarized the principles in cases
of alleged abetment of suicide. The relevant observations contained
in paragraph nos. 16.1 and 16.2 reads as below :
"16.1. For the purpose of finding out if a
person has abetted commission of suicide by
another, the consideration would be if the
accused is guilty of the act of instigation of the act
of suicide. As explained and reiterated by this
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Court in the decisions above-referred, instigation
means to goad, urge forward, provoke, incite or
encourage to do an act. If the persons who
committed suicide had been hypersensitive and
the action of accused is otherwise not ordinarily
expected to induce a similarly circumstanced
person to commit suicide, it may not be safe to
hold the accused guilty of abetment of suicide.
But, on the other hand, if the accused by his acts
and by his continuous course of conduct creates a
situation which leads the deceased perceiving no
other option except to commit suicide, the case
may fall within the four-corners of Section 306
IPC. If the accused plays an active role in
tarnishing the self-esteem and self-respect of the
victim, which eventually draws the victim to
commit suicide, the accused may be held guilty of
abetment of suicide. The question of mens rea on
the part of the accused in such cases would be
examined with reference to the actual acts and
deeds of the accused and if the acts and deeds are
only of such nature where the accused intended
nothing more than harassment or snap show of
anger, a particular case may fall short of the
offence of abetment of suicide. However, if the
accused kept on irritating or annoying the
deceased by words or deeds until the deceased
reacted or was provoked, a particular case may be
that of abetment of suicide. Such being the matter
of delicate analysis of human behaviour, each
case is required to be examined on its own facts,
while taking note of all the surrounding factors
having bearing on the actions and psyche of the
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accused and the deceased.
16.2. We may also observe that human mind
could be affected and could react in myriad ways;
and impact of one's action on the mind of another
carries several imponderables. Similar actions are
dealt with differently by different persons; and so
far a particular person's reaction to any other
human's action is concerned, there is no specific
theorem or yardstick to estimate or assess the
same. Even in regard to the factors related with
the question of harassment of a girl, many factors
are to be considered like age, personality,
upbringing, rural or urban set ups, education etc.
Even the response to the ill-action of eve-teasing
and its impact on a young girl could also vary for
a variety of factors, including those of
background, selfconfidence and upbringing.
Hence, each case is required to be dealt with on
its own facts and circumstances."
15. 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 from the ratio of cases decided by the Supreme
Court is clear that in order to convict a person under Section 306 of
the Indian Penal Code, there has to be a clear mens rea to commit an
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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.
16. In cases of alleged abetment of suicide, there must be a
proof of direct or indirect act/s of incitement to the commission of
suicide. It could hardly be disputed that the question of cause of a
suicide, particularly in the context of an offence of abetment of
suicide, remains a vexed one, involving multifaceted and complex
attributes of human behaviour and responses/reactions. In the case
of accusation for abetment of suicide, the Court would be looking for
cogent and convincing proof of the act/s of incitement to the
commission of suicide. In the case of suicide, mere allegation of
harassment of the deceased by another person would not suffice
unless there be such action on the part of the accused which compels
the person to commit suicide; and such an offending action ought to
be proximate to the time of occurrence. Whether a person has
abetted in the commission of suicide by another or not, could only be
gathered from the facts and circumstances of each case.
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17. In case of Chitresh Kumar Chopra v. State (Govt.of NCT of
Delhi) - [2009] 16 SCC 605, the Supreme Court had an occasion to
delve upon the mental state of the person committing suicide.
Endeavor was made to unfold the mental trauma of such person. It
is apt to note the relevant observations made in that regard, which
reads as below.
"20. In the background of this legal position,
we may advert to the case at hand. The question as
to what is the cause of a suicide has no easy
answers because suicidal ideation and behaviours in
human beings are complex and multifaceted.
Different individuals in the same situation react and
behave differently because of the personal meaning
they add to each event, thus accounting for
individual vulnerability to suicide. Each individual's
suicidability pattern depends on his inner subjective
10 experience of mental pain, fear and loss of self-
respect. Each of these factors are crucial and
exacerbating contributor to an individual's
vulnerability to end his own life, which may either
be an attempt for self-protection or an escapism
from intolerable self."
18. In the case of Geo Varghese [supra], the Supreme Court
held as follows : -
"23. What is required to constitute an alleged
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abetment of suicide under Section 306 IPC is
there must be an allegation of either direct or
indirect act of incitement to the commission of
offence of suicide and mere allegations of
harassment of the deceased by another person
would not be sufficient in itself, unless, there are
allegations of such actions on the part of the
accused which compelled the commission of
suicide. Further, if the person committing suicide
is hypersensitive and the allegations attributed to
the accused is otherwise not ordinarily expected
to induce a similarly situated person to take the
extreme step of committing suicide, it would be
unsafe to hold the accused guilty of abetment of
suicide. Thus, what is required is an examination
of every case on its own facts and circumstances
and keeping in consideration the surrounding
circumstances as well, which may have bearing
on the alleged action of the accused and the
psyche of the deceased."
19. Incidentally facts of this case are quite similar to the
above decision. In said case also a school going boy aged 14 years
has committed suicide, as he has been scolded by physical training
teacher. In that context, besides above observations, it is expressed
that maintaining overall discipline by the student cannot be
construed as an abetment to commit suicide.
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20. Applying the aforementioned principles it would be
necessary to go through the suicidal note and other relevant
material. A tender immature boy has expressed that his headmistress
gave a pat and asked him to stand outside the class room for few
minutes. He felt insulted. Statements of other students majorly
speaks about the occurrence, and added that none of the student has
either laughed or teased Chaitanya on said count. Pertinent to note
that 2 to 3 other students were also made to stand outside the class
room, meaning thereby similar treatment was given by the
headmistress to them also. Apparently the deceased was more
sensitive and acted differently by taking an extreme step. In that
context, the act of the headmistress, rather it was her duty to
maintain discipline, cannot be termed as an act of abetment. It is
evident that the deceased was hyper sensitive towards ordinary
affairs. The act of scolding to the student by a teacher is a routine
affair in every school, which are essential in peculiar facts to shape
the students in a proper manner.
21. We are conscious of the pain and suffering of the
informant who is mother of the deceased. It is very unfortunate that
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a young life has been lost in suicidal way, but, sympathizing and
sufferings of the informant cannot translate into legal remedy, much
less criminal prosecution in absence of prima facie material. Hence,
applying the position of law, as set out in various decisions of
Supreme Court to the facts of the present case, we are of the
considered opinion that a case is made out for interdicting the
criminal proceedings by quashing the first information report for the
reason that the material available on record does not indicate that
the applicant deserves to face trial for alleged offence punishable
under Sections 305 and 306 of the Indian Penal Code.
22. In view of above the Criminal Application is allowed. The
first information report bearing Crime No.721/2022 registered by
Badnera Police Station, District Amravati for the offence punishable
under Sections 305 and 306 of the Indian Penal Code is quashed
and set aside.
23. Fees of the appointed Counsel for non-applicant no.2 be
paid as per Rules.
JUDGE JUDGE
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Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 05/12/2023 18:15:50
