Bombay High Court
Sanjay S/O Damodar Bhalerao And 2 Others vs The State Of Maharashtra, Thr. Pso, ... on 25 October, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:12190-DB
APL 860-2021-J.odt 1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 860 OF 2021
1) Shri Sanjay S/o. Damodar Bhalerao, Aged
about 65 years, Occu.: Agriculturiest,
2) Shri Sachin S/o. Sanjay Bhalerao, Aged
about 28 years, Occu.: Agriculturist,
3) Shri Mangesh S/o. Sanjay Bhalerao, Aged
about 26 years, Occu.:
Student/Agriculturist,
All Applicants are R/o. Raikhed,
Hiwarkhed, Post Hingni (Bk.), Taluka
Telhara, District Akola ....APPLICANTS
....VERSUS....
1) The State of Maharashtra, Through
Police Station Officer, Police Station
Hiwarkhed, Taluka Telhara, District Akola
2) Ganesh S/o. Dhondu Nemade, aged
about 37 years, Occ.: Agriculturist, R/o.
Raikhed, Hiwarkhed, Post Hingni (Bk.)
Taluka Telhara, District Akola ....NON-APPLICANTS
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Shri A.A. Naik, Senior Advocate a/b. Shri Amit A.Chougbe,
Advocate for applicants.
Shri V.A. Thakre, APP for respondent no. 1/State.
Shri O.A. Ghare, Advocate for respondent no. 2.
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APL 860-2021-J.odt 2/16
CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATE : 25/10/2024
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
Heard.
2. Being aggrieved by filing of Final Report (Charge-
Sheet) dated 09/05/2024 arising out of First Information
Report in Crime No. 270/2021 dated 28/06/2021 registered at
non-applicant no. 1-Police Station for the offence punishable
under Section 306 read with Section 34 of the Indian Penal
Code and having no alternate remedy none equally
efficacious, the petitioners have approached this Court by
invoking inherent jurisdiction under Section 482 of the Code
of Criminal Procedure, 1973.
3. It is submitted by the applicants that, the non-
applicant no. 2 is the complainant, who has lodged the F.I.R.
against the present applicants on 28/06/2021 at Police Station
Hiwarkhed. The applicants are arrayed as accused in the
aforesaid crime number for the offence punishable under
Section 306 r/w. 34 of IPC on the F.I.R.
4. It is the case of the complainant (non-applicant no.
2) that, he along with his brother Dinesh and his father are
having 10 acres of agricultural land at village Raikhed. It is
further stated that, immediately adjoining to the field of the
complainant, the applicants are also cultivating their
agricultural land of about 7 acres. Since last four years, there
was a dispute regarding the boundaries of the agricultural
land in between the parties and was also tried to be settled by
the President of the Tantamukti and Police Patil of the village
Raikhed and the dispute of the boundaries was settled.
5. Prior to 15 days from the date of the incident, the
complainant had sown the seeds of Soyabean and about four
days thereafter when the complainant along with his father
Dhondu were present in his agricultural field, the applicant
Sachin i.e. applicant no. 2 had been there and asked them that
two lines of seeds of Soyabean were sown by the complainant
and his father in the field of the applicants and he destroyed
those lines of seeds of Soyabean.
6. On 25/06/2021 at about 07.00 a.m., the
complainant's friend Santosh Nemade telephonically called
him and informed him that the father Dhondu Vitthal
Nemade had committed suicide by hanging himself on a tree
and when the complainant went to the place of the alleged
incident, his father had already passed away. A suicide note
was found in the pocket of the deceased and on reading of the
same, the deceased had written in his own handwriting the
names of the applicants and stated therein that since the
applicants had destroyed the seeds of Soyabean sown in the
field and the deceased had been obstructed from cutting of
the tree, the deceased has committed suicide on account of the
harassment of the applicants. On the above allegations, the
FIR under Section 306 r/w. Section 34 of IPC had been
registered against the applicants.
7. The applicants thereafter applied for grant of
anticipatory bail before the District and Sessions Judge, Akot
by invoking the provisions of Section 438 of Cr.P.C. Vide
order dated 04/08/2021. The applicants were granted bail by
the learned Additional District and Sessions Judge, Akot.
8. On 09/05/2024, a Final Report came to be filed in
the aforesaid crime number for the offence punishable under
Section 306 r/w. 34 of I.P.C.
9. It is further submitted that the Hon'ble Supreme
Court in the case of State of Haryana and others V/s. Bhajan
Lal [AIR 1992 SC 406] has laid down 7 categories of cases by
way of illustration, wherein the power under Section 482 of
Cr.P.C. or Article 226 of the Constitution of India could be
exercised to quash the FIR to prevent the abuse of process of
the Court or to secure the ends of justice. The case of the
applicants is squarely covered under categories 1, 3, 5 and 7.
The applicants, therefore, most respectfully submitted that
this Court may kindly be pleased to invoke its inherent
powers u/s. 482 of Cr.P.C. and quash Final Report (Charge-
Sheet) dated 09/05/2024 arising out of First Information
Report in Crime No. 270/2021 dated 28/06/2021.
10. It is also submitted that, the alleged incident of
damage to the crop of the deceased is much prior to the date
of commission of suicide and there is no live link between the
said incident and the committing of suicide. In absence of live
link between the alleged provocation and commission of
suicide, no offence under Section 306 of IPC can be said to be
made out.
11. The learned counsel for the applicants relied on
the following authorities/citations:-
(i) M.Vijaykumar V/s. State of Tamil Nadu [(2024) 4
SCC 633.
(ii) Nipun Aneja and ors V/s. State of Uttar Pradesh
[Order of Hon'ble Apex Court in Criminal Appeal No.
654/2017 decided on 03/10/2024]
(iii) Arnab Manoranjan Goswami V/s. State of
Maharashtra and ors. [(2021) 2 SCC 427]
12. The learned APP for the respondent no.1/State
submitted that, on perusal of the FIR and suicide note, it has
come on record that, there was a dispute between the parties
in respect of agricultural boundaries. Earlier, the Police Patil
of village and other people had settled the dispute between
the parties, but the present applicants for one or the other
reasons used to harass the deceased Dhondu and on the date
of incident, the accused persons had destroyed row of
Soyabean crop and therefore, the deceased Dhondu
committed suicide.
13. The Investigating Agency has recorded the
statements of the Police Patil, Sarpanch of the village, which
supports the prosecution case. Taking into consideration the
material collected by the Investigating Agency which is in
form of suicide note and statement of witnesses, there is a
strong prima-facie material against the present applicants. The
application filed by the present applicants for quashing the
Final Report arising out of FIR in aforesaid crime is, therefore,
contended to be without any merit and substance and hence,
same may kindly be rejected.
14. In spite of service to the complainant, he chose to
remain absent. However, to grant fair opportunity, the matter
was adjourned, in spite of that, the complainant was absent.
Therefore, the learned counsel Shri O.A. Ghare, came to be
appointed by the Court to represent the complainant and
matter was adjourned on 23/10/2024. We have heard the
learned counsel Shri Ghare for the complainant. He drew our
attention to the statement recorded by the Investigating
Officer. It is the contention of the complainant that, there was
suicide note and the names of the applicants (accused) are
mentioned therein. It is also a matter of the fact that, there was
dispute going on since last four years. In view of that, there is
prima facie case against the applicants (accused) and there is
no case for quashing the F.I.R. or setting aside the
charge-sheet.
15. Heard the learned counsel for the applicants,
learned APP for the non-applicant no. 1/State and Shri Ghare,
learned Counsel for complainant.
16. As per the complainant, he along with his brother
Dinesh and his father are having 10 acres of agricultural land
at village Raikhed. His father Dhondu Vitthal Nemade was
also helping them in cultivating the land. Immediately
adjoining to the field of the complainant, the applicants are
also cultivating their agricultural land of about 7 acres. The
F.I.R. further says that since last four years, there was a
dispute regarding the boundaries of the agricultural land in
between the parties and it was also tried to be settled by the
President of the Tantamukti and Police Patil of the village
Raikhed and the dispute of the boundaries was settled.
17. It is alleged by the complainant that prior to 15
days of incident, the complainant had sown the seeds of
Soyabean and thereafter about four days thereon when the
complainant along with his father Dhondu were present in his
agricultural field, the applicant no. 2 herein had been there
and asked them that two lines of seeds of Soyabean were
sown by him (complainant) and his father in their (applicants)
field, and he destroyed those two lines of seeds of Soyabean.
It appears that, the incident of committing suicide occurred 11
days thereafter. In order to make out an offence punishable
under Section 306 of I.P.C., it has to be established that the
commission of the offence was abeted. It requires to make out
the case of abetment as is contemplated under Section 107 of
I.P.C. Section 306 of I.P.C. which states that, 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 10 years and shall
also be liable to fine. If Section 107 of I.P.C. is perused, it reads
as under:-
"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."
18. As such, there has to be immediate instigation or
intentionally aiding of a suicide. In the present matter, as per
the complaint itself, the incident of destroying two lines of
Soyabean by the applicants occurred around 11 days prior to
the incident of commission of suicide. In our considered
opinion, there is no instigation nor there is any live link, as
such, to satisfy the requirement of an offence of abetment of
suicide, in which, the presence of mens rea, therefore, is a
necessary concomitant of the word 'instigation'.
19. The present application was earlier filed for
quashing of F.I.R., however, the Charge-Sheet is filed during
the pendency of the present application. The applicants also
seek to quash and set aside the Charge-Sheet in connection
with Crime No. 270/2021 dated 09/05/2024, registered with
Police Station, Hiwarkhed. We are of the considered opinion
that, prima facie circumstances of the case do not make out any
intention on the part of the applicants that, by destroying two
lines of seeds of Soyabean or by refusing permission to cut the
tree, which was 11 days earlier to the incident, there was any
intention of the applicants that deceased should commit
suicide. There is nothing on record to show that, immediately
before the incident of suicide, there was any altercation
between the applicants and the deceased. From the available
record itself, it transpires that, no offence under Section 306 of
IPC is made out. There has to be incitement, goading or
provocation to commit suicide, which is in immediate
proximity to the death, which is absent in the matter. A
period of 11 days between the destroying of two lines of crop
and the death of the deceased would be sufficient to break
any live link between the incident and the death of the
deceased.
20. The learned counsel for the applicants relied on
M.Vijaykumar (supra) in support of his contention that,
without a positive act on the part of an accused to instigate or
aid in committing suicide, conviction cannot be sustained. In
para 20 of the said judgment, the Hon'ble Apex Court relied
on the decision in Enforcement Directorate V/s. M.C.T.M.
Corpn. (P) Ltd. [(1996) 2 SCC 471], wherein it is observed as
under:-
"it was observed that mens rea is a state of mind
and held that under the criminal law mens rea is
considered as the "guilty intention" and unless it
is found that the "accused"'" had the guilty
intention to commit the crime, he could not be
held guilty of committing the crime."
21. The learned counsel for the applicants relied on
Nipun Aneja and ors. (supra), wherein the Hon'ble Apex
Court observed in para 22 as under:-
"22. The test that the Court should adopt in this type
of cases is to make an endeavour to ascertain on the
basis of the materials on record whether there is
anything to indicate even prima facie that the accused
intended the consequences of the act, i.e., suicide. Over
a period of time, the trend of the courts is that such
intention can be read into or gathered only after a
fullfledged trial. The problem is that the courts just
look into the factum of suicide and nothing more. We
believe that such understanding on the part of the
courts is wrong. It all depends on the nature of the
offence & accusation. For example, whether the
accused had the common intention under Section 34 of
the IPC could be gathered only after a full-fledged trial
on the basis of the depositions of the witnesses as
regards the genesis of the occurrence, the manner of
assault, the weapon used, the role played by the
accused etc. However, in cases of abetment of suicide
by and large the facts make things clear more
particularly from the nature of the allegations itself.
The Courts should know how to apply the correct
principles of law governing abetment of suicide to the
facts on record. It is the inability on the part of the
courts to understand and apply the correct principles
of law to the cases of abetment of suicide, which leads
to unnecessary prosecutions. We do understand and
appreciate the feelings and sentiments of the family
members of the deceased and we cannot find any fault
on their part if they decide to lodge a First Information
Report with the police. However, it is ultimately for
the police and the courts of law to look into the matter
and see that the persons against whom allegations have
been levelled are not unnecessarily harassed or they are
not put to trial just for the sake of prosecuting them."
22. The learned Counsel for the applicants relied on
Arnab Manoranjan Goswami (supra), in support of his
contention that, where the allegations made in the FIR or the
complaint, even if they are taken at their face value and
accepted in their entirety, do not prima facie constitute any
offence or make out a case against the accused, the
proceedings may be quashed.
23. After Considering the F.I.R. and statement of the
witnesses filed along with Charge-Sheet which also do not
refer to any specific instances, the ingredients which could
constitute essential ingredients of Section 306 of IPC or any
live link to connect the accused in the alleged offence are
found to be absent. Considering all over materials placed on
record, we are of the considered opinion that, putting the
applicants to trial on the charge that, they have abetted the
commission of suicide by the deceased will be nothing but
abuse of process of Court and if such proceedings is
continued and the applicants are put to trial just for the sake
of prosecuting, then it would be unnecessarily harassment. As
such, on the basis of the material on record, there is nothing to
indicate even prima facie that the accused intended the
consequences of the act i.e. suicide. Even if there is suicide
note recovered from the deceased, nothing will turn on the
fact that there is no live link between the incidence of
destroying Soyabean crop and suicide of the deceased. There
is eleven days gap in between these two incidences, even
there is no overt act on the part of the accused, so that, it
cannot be concluded that the applicants abetted the deceased
for committing suicide. We appreciate the assistance and
cooperation extended by learned Counsel Shri Ghare in
representing the complainant. Accordingly, we proceed to
pass the following order:-
ORDER
1) The application is allowed.
2) The F.I.R. bearing Crime No. 270/2021 dated
28/06/2021 registered with non-applicant no. 1-Police
Station, Hiwarkhed against the applicants for the
offence punishable under Section 306 read with Section
34 of Indian Penal Code is hereby quashed and set
aside. Consequently, the Charge-Sheet dated
09/05/2024 in connection with the said Crime No.
270/2021 is also hereby quashed and set aside.
3) The Secretary of the High Court Legal Services
Sub-Committee, Nagpur is directed to pay the honorarium
to learned Counsel Shri O.A. Ghare as per norms.
4) Accordingly, the application stands disposed of.
(Judge) (Judge)
B.T.Khapekar
Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 25/10/2024 18:51:37
