The State Of Maharashtra vs Ramesh S/O. Prakash Gorade
2023 Latest Caselaw 6393 Bom

                                                                     ALS-130-2018
                                        -1-

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

   APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 130 OF 2018

 The State of Maharashtra,
 Through Police Station Vaijapur,
 District Aurangabad.                                      ... Applicant

          Versus

 Ramesh s/o Prakash Gorade,
 Age 19 years, Occu. Education,
 R/o Karanjgaon, Taluka Vaijapur,
 District Aurangabad.                                      ... Respondent
                                                           [Orig. Accused]
                                        .....
                   Mr. S. J. Salgare, APP for the applicant-State
                                        .....

                               CORAM :        SMT. VIBHA KANKANWADI AND
                                              ABHAY S. WAGHWASE, JJ.

DATED : 06.07.2023

ORDER [ABHAY S. WAGHWASE, J.] :

1. Feeling aggrieved by the judgment and order of acquittal

passed by learned Additional Sessions Judge, Vaijapur in Special Case

(POCSO) No. 21 of 2015 dated 15.03.2018, by which the present

respondent stood acquitted from charges under Sections 305, 306 and

354-D r/w 34 of the Indian Penal Code [IPC] and Sections 11(4) and

12 of the Protection of Children from Sexual Offences Act, 2012

[POCSO Act], the State has preferred instant application thereby

seeking leave to prefer appeal against the said judgment and take

action under Section 390 of the Code of Criminal Procedure [Cr.P.C.].

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2. Learned APP for the State would point out that respondent

herein was chargesheeted for commission of offence punishable under

Sections 354-D, 305 and 306 of IPC and Sections 11 and 12 of the

POCSO Act. It is pointed that victim was a minor. Accused used to

follow her and sexually harass her. Getting fed up of the same, victim

girl, a minor, committed suicide. That, prosecution had established

that the girl was minor. There was ample evidence about continuous

harassment which was of such nature that life of deceased was made

miserable and she was left with no other alternative but to consume

poison and end up her life. That, prosecution had adduced evidence

of in all eight witnesses, including doctor. There was no other reason

for deceased to commit suicide. Investigation revealed that

respondent herein was solely responsible for consumption of poison

by the victim. That, in spite of availability of overwhelming evidence,

it is submitted that, the same has not been taken into account by

learned trial Judge and even law required for attracting the charges

has not been taken into consideration, resulting into acquittal. It is

lastly submitted that prosecution has a very strong case in the trial

court. There is failure to appreciate the evidence in its correct

perspective and therefore, State intends to challenge the unwarranted

acquittal and hence, he prays for leave to prefer appeal.

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3. We have heard learned APP at length.

4. Here, it seems that present respondent was made to face trial

for commission of offence punishable under Sections 354-D, 305 and

306 of IPC and Sections 11 and 12 of the POCSO Act.

5. The precise case of prosecution, as is emerging from the papers

before us is that, victim was studying in 10 th standard. It seems that

prosecution came with a case that present respondent initially

befriended classmate of the victim and thereafter he started following

her whenever she went to school and returned home. That, on

27.08.2015, getting fed up of the alleged act of accused, victim

consumed poison. Paternal uncle of the victim has set law into motion

and crime was registered against the present respondent at Vaijapur

Police Station. In support of its accusation of abetment to commit

suicide and commission of other offences under IPC, prosecution had

pressed into service evidence of in all eight witnesses. Their status is

as follows:

PW1 - Dr. Manoj Patekar, who conducted postmortem. PW2 - Informant, paternal uncle of victim. PW3 - father of victim.

PW4 - mother of victim.

PW5 - Headmaster of the school where victim studied.

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PW6 - Bhagwan Marathe, acquaintance of informant.

PW7 - Raghunath Rothe, pancha to memorandum of disclosure

and seizure.

PW8 - PSI Neknur, the Investigating Officer.

6. On going through the oral evidence of PW1 Dr. Patekar, it is

emerging that the doctor has, on autopsy, opined death due to

poisoning. It seems that in trial court also there is no serious dispute

about mode and manner of death. Therefore, when death is shown to

be due to consumption of poison, it is to be primarily seen whether

prosecution has discharged its burden of further establishing that

accused respondent had abetted the suicide. To ascertain this aspect,

we need to visit testimonies of informant and parents.

7. The informant uncle's [PW2] evidence shows that deceased was

studying in 10th standard. It is his testimony that on 27.08.2015, all

family members had been to attend 10 th day ritual, whereas deceased

had been to school. Informant seems to have received phone call from

brother of deceased that victim had consumed some medicine and

therefore, she was taken to hospital. The informant claims that while

being shifted, inquiry was made with victim and she allegedly named

Ganesh and present respondent Ramesh for harassing her whenever

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she went to school and hence, she has taken such decision. He further

stated that they were restraining her on the way, following and

chasing her.

His cross-examination shows that since 15 days prior to the

incident, there was change in the behaviour of victim, but it was

presumed by family members that she was ill. All suggestions put by

prosecution in cross-examination about unsatisfactory academic

results and educational performance were to be result for

consumption of poison had been turned down by this witness.

8. PW3 father also spoke about his daughter studying in 10 th

standard. His evidence shows that he learnt from his son Yogesh that

his daughter had consumed poison. He also stated that while being

taken to hospital, his brother inquired victim and she allegedly told

that since 8 to 10 days, Ramesh and Ganesh were harassing her and

getting fed up of such treatment, she consumed poison. In cross, he

has admitted that when they all left for the last day ritual of a death

of someone, at that time victim was alright. He denied that victim

consumed poison immediately after he left the house. Rather, he

further answered that after coming back to home, they were present

in the house along with victim about three to five minutes. He

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admitted that poison was brought in the house by him but he

volunteered that it was for spraying on cotton crop. He further

admitted that victim knew the place where it was kept. He was unable

to give names of the friends of victim. He admitted that prior to the

suicide, victim was happy and made no complaint against anybody,

but he volunteered that she was nervous for four to five days prior to

the incident. He admitted that he did not inquire after 27.08.2015

either to friends or teachers of the victim whether accused was

harassing her or not.

9. PW4 mother at exhibit 50 also stated about they being out of

house and had been to village Dahegaon and about receiving phone

call from their son about victim consuming poison. She also stated

that while being taken to the hospital, when her brother-in-law asked

victim as to why she did so, victim allegedly answered that Ganesh

and Ramesh were troubling her while she was going to school and

hence she consumed poison. In cross-examination, she also admitted

that after 27.08.2015, neither she nor her husband nor the informant

brother-in-law inquired with the persons residing alongside the road

going to school about any harassment to victim by accused. In cross-

examination, she is unable to state when victim consumed poison.

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10. PW5 was examined to establish age of the victim. However,

there is no dispute that she was a minor.

11. PW6 Bhagwan Marathe stated that he learnt from informant

about informant's niece consuming poison and he was requested to

accompany informant and therefore he went. He stated that the girl

was taken in a jeep of informant. He stated that while proceeding to

the hospital, informant asked the girl as to why she has done the said

act, upon which the girl told two names, i.e. Ganesh and Ramesh,

saying that they were troubling her by chasing her on the way. In

cross-examination, he admitted that when victim was taken to the

hospital, her condition was critical and was sleeping on the laps of her

parents. He also admitted about doctor informing that her condition

was critical.

12. PW7 Raghunath Rothe is the pancha witness to memorandum

of disclosure and recovery.

13. PW8 PSI Shrinivas Bhikane, Investigating Officer, in his

examination-in-chief spoke about all steps taken by him while

conducting and concluding investigation. In cross-examination, he has

admitted that he did not get any eye witness on the point of trouble

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being given to victim in spite of inquiry. He admitted that he did not

inquire whether victim was in a position to talk at all while being

taken to the hospital, nor he made inquiry with the doctor at Ghati

hospital to that extent. He admitted that he did not inquire as to how

and from where victim procured the poison and is unable to state

whether parents were negligent in storing it. He candidly answered

that informant and all the witnesses are hearsay witnesses. He denied

that he made no inquiries with the classmates or teachers or the

people residing along the side of the road which was adopted by

deceased to go to school. He admitted that investigation did not

reveal as to what were the inappropriate words, things spoken by

accused and at no point of time victim or her parents had lodged any

report against accused. To a question as to whether there was sexual

harassment to victim, the Investigating Officer has answered that it is

merely mentioned that accused was following victim and was talking

inappropriate things.

14. After analyzing the above substantive evidence of parents, it is

clear that allegations levelled in the trial are pertaining to Sections

354-D, 305 and 306 of IPC. Unfortunately, there is weak evidence

about following victim. Even there is no iota of evidence to show that

there was abetment at the instance of present respondent. What was

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the nature of harassment or what were the utterances has not been

stated by any of the witnesses. When such instances took place has

also not come on record. In our opinion, it was essential for

prosecution to at least show that immediately prior to the alleged

consumption, that day accused had followed, chased, stalked, or

harassed deceased, so as to accept the case of prosecution about

accused creating such circumstances which compelled the victim child

to commit suicide by consuming poison. It is also not brought on

record whether that day she went to school and returned back or

being harassed by accused.

15. In the light of charge, it has to be first proved that death was

suicidal and it was as a result of abetment. As to what is meant by

abetment, is also fairly settled. It has to be shown that there was

instigation, intentionally aiding by way of any act or omission to do a

particular thing. Similarly, for attracting Section 306 IPC, it has to be

shown that there was inducement, incitement with clear mens rea to

commit the offence by actively participating in such act with precise

intention that deceased would end up life. A positive act has to be

attributable to the person before charging him for abetment. These

essential requirements are clearly spelt out in various

pronouncements like Ramesh Kumar v. State of Chhatisgarh ; (2001)

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9 SCC 618, Sanju @ Sanjay Singh Sengar v. State of M.P.; 2002

Cr.L.J. 2796, S.S. Chheena v. Vijay Kumar Mahajan ; (2010) 12 SCC

190, Gurcharan Singh v. State of Punjab ; AIR 2017 SC 74 and

Mahendra Singh v. State of M.P. ; 1995 Suppl (3) SCC 731. Above

pronouncements are very categorical that for constituting abetment,

intention and active involvement of accused in aiding or instigating

commission of suicide is imperative. Mens rea coupled with indictable

act or positive act has to be attributable and in absence of the same,

guilt cannot be fasten for commission of offence under Section 306 of

IPC.

16. Here, in support of charge under Section 354-D, there is little

or virtually no evidence. Particulars and details of the instances have

not come on record. Abetment is not proved.

17. Therefore, apparently, when there is no material on the point of

abetting commission of suicide, and required ingredients for

attracting Section 107 of IPC being patently missing, no fault can be

found whatsoever in the judgment of the trial court giving clean chit

to the accused on account of failure of prosecution to bring home the

charges. In the light of available evidence on record, we too are

convinced that there is no merit in this case so as to permit State to

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take up further steps of preferring appeal as apparently, it would be a

futile exercise to do so. Hence, the application for leave to appeal by

State is hereby rejected.

[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]

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