Bombay High Court
Dipali W/O. Vishnu Taur And Others vs The State Of Maharashtra And Another on 20 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:22201-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2763 OF 2022
1) Dipali W/o Vishnu Taur,
Age-26 years, Occu:Housewife,
R/o-C/o-Sunil Sheshrao Salunke,
Dharur Road, Bhavani Nagar,
Keij, Taluka-Kaij, Dist-Beed,
2) Sunil Sheshrao Solunke,
Age-59 years, Occu:Labour,
R/o-As Above,
3) Ashabai Sunil Solunke,
Age-55 years, Occu:Housewife,
R/o-As Above,
4) Mahesh S/o Sunil Solunke,
Age-27 years, Occu:Private Service,
R/o-As Above,
5) Manesh S/o Sunil Solunke,
Age-23 years, Occu:Private Service,
R/o-As Above.
...APPLICANTS
VERSUS
1) The State of Maharashtra,
(Through the Police Station,
MIDC Waluj, Aurangabad),
2) Keshavrao Bhagwanrao Taur,
Age-60 years, Occu:Agri.,
R/o-Balaji Nagar, Dhoki,
Taluka and District-Osmanabad.
...RESPONDENTS
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...
Mr. Ganesh J. Kore Advocate for Applicants.
Mr. A.M. Phule, A.P.P. for Respondent No.1.
Mr. Gaurav L. Deshpande Advocate for Respondent No.2.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE OF RESERVING JUDGMENT : 20th AUGUST 2024
DATE OF PRONOUNCING JUDGMENT : 20th SEPTEMBER 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Heard finally with the consent of the learned Advocates for
the rival parties.
2. Present Application has been filed invoking the inherent
powers of this Court under Section 482 of the Code of Criminal
Procedure for quashing the First Information Report (for short
"the FIR") vide Crime No. 215 of 2022 and byway of amendment
prayer has been made for quashing the proceedings in R.C.C.
No.2231 of 2022 pending before the learned Judicial Magistrate
First Class, Aurangabad for the offence punishable under Section
306 read with Section 34 of the Indian Penal Code.
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3. Heard learned Advocate Mr. Kore appearing for the
applicants, learned APP Mr. Phule appearing for State and
learned Advocate Mr. Deshpande appearing for respondent No.2.
4. Learned Advocate for the applicants states that applicant
No.1 is the wife of deceased Vishnu Taur, who was the son of
respondent No.2 - informant. Applicant Nos.2 and 3 are the
parents of applicant No.1. Applicant Nos.4 and 5 are the brothers
of applicant No.1. Perusal of the FIR would show that the
informant wanted to say that the applicants, especially applicant
No.1, used to give insulting treatment to the deceased. She used
to quarrel with him and used to say that as to why he is not
dying, he is not eligible to live. The deceased was taken to a
person indulged in black magic and thereby the mental
harassment was intensified. The applicants used to say to the
deceased that he should die. Applicant No.1 had gone to her
parental home for delivery and at that time the deceased was
staying with applicant Nos.4 and 5. They used to ask him to cook
the food for them also and clean the utensils thereby each one of
them was contributing in insulting the deceased and due to the
said harassment deceased Vishnu committed suicide by hanging,
on 4th June 2021. The informant had in fact approached the
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police, however, the police had not recorded his FIR. Therefore,
he had given complaint by post to the Police Commissioner. No
cognizance of the same was taken and therefore informant had
filed application i.e. Criminal M.A. No.3165 of 2021 under
Section 156(3) of the Code of Criminal Procedure before the
learned Judicial Magistrate First Class, Court No.17, Aurangabad.
That application came to be allowed on 20 th October 2021 and
then the FIR vide crime No.215 of 2022 came to be registered.
There are allegations to the extent that suspicion has been
expressed at the scene and it is then tried to say that the feet of
the deceased were touching to the floor as it is seen from the
photographs but the tongue has not come out. According to the
informant the police have not investigated the matter properly.
All these contentions were raised in the application under Section
156(3) of the Code of Criminal Procedure. But now the
investigation is over and charge-sheet is filed. It is under Section
306 read with Section 34 of the Indian Penal Code. Perusal of
the FIR and the material that has been collected, would show
that except suspicion there is nothing. The acts alleged do not
amount to instigation or abetment. Therefore, it would be unjust
to ask the applicants to face the trial.
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5. Per contra, the learned APP as well as learned Advocate Mr.
Gaurav Deshpande for respondent No.2 strongly opposed the
application and submitted that still after investigation it can
certainly be said that the suicide was the result of the insulting
treatment which amounted to abetment. All those treatments /
acts of the applicants while interacting with the deceased and
dealing with the deceased have been stated in the FIR as well as
in the supplementary statement. It is stated that applicant No.1
was having desire to lead a luxurious life but deceased Vishnu
could not afford the same and therefore, she used to give
insulting treatment to the deceased. Even when applicant No.1
had gone for delivery, applicant Nos.4 and 5 gave insulting
treatment to the deceased. After birth of the son, expectations of
applicant No.1 from the deceased got increased. Father of the
deceased had received phone call of the deceased wherein he
told that he felt harassed and therefore, when the charge-sheet
is filed, let the applicants face the trial.
6. It is not disputed that deceased Vishnu was found in
hanging position in the room which was taken on rent. It is also
not in dispute that on that day applicant No.1 was in her
parental house and had gone there for delivery. The parental
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house of applicant No.1 is at Kaij, District-Beed, whereas
deceased Vishnu was residing in Aurangabad. Applicant No.1
delivered a son on 22nd January 2021 and it appears that till 4 th
June 2021 she had not returned / joined the company of the
deceased. From the statements on record, it can be seen that
Vishnu was serving in a company at M.I.D.C., Waluj,
Aurangabad. Now as per the FIR, it is the contention that
applicant No.1 and her mother used to give insulting treatment
to the deceased. However, it shows that upon the information
given by the deceased, the informant is making that kind of
statement. It is not stated that he himself had seen or witnessed
the insulting treatment. By mere use of word that insulting
treatment was given, it cannot be so considered. When
admittedly the informant was residing at Balajinagar, Dhoki,
Taluka and District-Osmanabad and immediately after the
marriage the deceased Vishnu and applicant No.1 were residing
at Moshi, Pune for a year and thereafter went to reside at
Aurangabad, informant was not the person who had regularly
witnessed the behaviour of applicant No.1 with her husband.
7. In the statement recorded on 12 th July 2021, informant
gives an impression that Vishnu and applicant No.1 were taken
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to Aurangabad by the other accused persons under the pretext
that they would give him a service having good salary and some
business in addition. But then informant says that neither service
was given nor amount was given for starting business and then
Vishnu was doing labour work. This indicates that in fact
informant was having some expectations from the applicants.
Time and again it is stated in the said statement that the
applicants used to say to the deceased Vishnu that he should go
and die and used to use insulting words by addressing him as a
beggar. Even if we take the contents of the FIR and statement of
the informant dated 12th July 2021 as it is and may be the
statement of the other witness i.e. brother of the deceased, yet
it cannot be said that those are attracting the ingredients of
Section 107 and Section 306 of the Indian Penal Code. We would
like to rely on Swamy Pralhaddas vs. State of M.P. and another,
1995 Supp (3) Supreme Court Cases 438 , wherein the appellant
was charged for an offence under Section 306 of the Indian
Penal Code on the ground that the appellant during the quarrel
asked the deceased "to go and die". The Hon'ble Supreme Court
held that mere use of those words by the accused to the
deceased were not even prima facie enough to instigate the
deceased to commit suicide.
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8. In fact, in such circumstances, even if we take that those
persons had uttered those words, whether it was the intention
of the accused persons that deceased should really go and
commit suicide, is a question. Here the FIR and the other
documents on record would show that such threats or asking 'to
go and die' was given since many months prior to actual suicide
but then applicant No.1 had become pregnant and she had given
birth to a child. There is no evidence produced on record to show
that after the birth of the child the relationship between
deceased and applicant No.1 become strained, as they had never
seen each other after the birth of the son till the deceased
committed suicide. Important point also to be taken note of is
that brother of deceased appears to be an Advocate, whose
statement is also recorded on 12 th July 2021. If whatever stated
by him in his statement was a real fact, then he would have
definitely helped out his brother and would have prevented the
suicide. The statements later on made, cannot take the form of
evidence of instigation. It appears that due to the suicide, now
the allegations have been levelled but those cannot form the
part of evidence or are not fulfilling the ingredients of the
offence.
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9. We would also like to rely on Dilip S/o Ramrao Shirasao
and others vs. State of Maharashtra and another, 2016 ALL MR
(Cri) 4328, wherein this Court, relying upon the catena of the
decisions of the Hon'ble Supreme Court, held that it is necessary
for the prosecution to at least prima facie establish that the
accused had an intention to aid or instigate or abet the deceased
to commit suicide and in the absence of availability of such
material, the accused cannot be compelled to face trial for the
offence punishable under Section 306 of the Indian Penal Code.
We would like to reproduce Paragraph Nos. 11 to 18 of the said
decision:-
" 11. The law as to what are the requirements to constitute an
offence punishable under Section 306 of the IPC is no more res
integra. The law is very well crystalized by the Hon'ble Apex Court
in the catena of cases including in the cases of Sanju alias Sanjay
Singh Sengar vs. State of Madhya Pradesh, reported in 2002
Cri.L.J. 2796; Madan Mohan Singh vs. State of Gujrat and another,
reported in (2010) 8 SCC 628; and in the case of S.S. Chheena vs.
Vijay Kumar Mahajan reported in 2010 All MR (Cri) 3298 (S.C.).
12. In the case of Sanju @ Sanjay Sengar cited supra, the
appellant before the Apex Court was the brother of Neelam wife of
deceased Chander Bhushan @ Babloo. It was the prosecution case
that after marriage of Neelam with the deceased, there was
continuous ill-treatment by the deceased and his family members
to Neelam. As such she had gone to her parents house and started
cria-2763.22
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living with her brother, the appellant before the Apex Court. About
two months prior to the incident, the appellant advised the
deceased to take his sister back to her matrimonial house and
treat her properly. It was the prosecution case that on 25 th July,
1998, the appellant visited the place of the parents of the
deceased and pleaded with them that his sister should be
rehabilitated in the matrimonial home and should not be physically
ill-treated or harassed. It was also the prosecution case that on
that day the appellant also said to have threatened the parents of
the deceased that if they do not mend their behaviour towards his
sister, he would be compelled to resort to filing a complaint under
Section 498-A of the Indian Penal Code. On this, the parents of the
deceased expressed helplessness. It was the further prosecution
case that the parents of the deceased informed the deceased
about the same. He went to the house of parents of the appellant,
where quarrel took place between them. Therefore, the deceased
returned alone and told his brothers and other acquaintances that
the appellant had threatened and abused him by using filthy
words. On the next date i.e. on 27 th July, 1998, the deceased was
found hanging with a rope by neck on the raft of his house and he
was found dead. A suicide note was left by the deceased. On the
basis of the said suicide note, the charge-sheet was filed against
said Sanju alias Sanjay Sengar . A petition challenging filing of
charge-sheet was filed before the High Court under Section 482 of
the Code of Criminal Procedure. The same was rejected. Hence,
said Sanju alias Sanjay Sengar approached the Hon'ble Apex
Court.
13. The Apex Court in Sanju @ Sanjay Sengar's case considered
the earlier judgments in paragraphs 9 to 12 of the said judgment.
It would be appropriate to refer to the same -
"9. In Swamy Prahaladdas v. State of M.P. & Anr. , 1995
Supp. (3) SCC 438, the appellant was charged for an offence
under Section 306 I.P.C. on the ground that the appellant
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during the quarrel is said to have remarked the deceased 'to
go and die' . This Court was of the view that mere words
uttered by the accused to the deceased 'to go and die' were
not even prima facie enough to instigate the deceased to
commit suicide.
10. In Mahendra Singh vs. State of M.P., 1995 Supp.(3) SCC
731, the appellant was charged for an offence under Section
306 I.P.C basically based upon the dying declaration of the
deceased, which reads as under:
"My mother-in-law and husband and sister-in-law (husband's
elder brother's wife) harassed me. They beat me and abused
me. My husband Mahendra wants to marry a second time.
He has illicit connections with my sister-in-law. Because of
those reasons and being harassed I want to die by burning."
11. This Court, considering the definition of 'abetment' under
Section 107 I.P.C., found that the charge and conviction of
the appellant for an offence under Section 306 is not
sustainable merely on the allegation of harassment to the
deceased. This Court further held that neither of the
ingredients of abetment are attracted on the statement of
the deceased.
12. In Ramesh Kumar vs. State of Chhattisgarh (2001) 9
SCC 618, this Court while considering the charge framed and
the conviction for an offence under Section 306 I.P.C. on the
basis of dying declaration recorded by an Executive
Magistrate, in which she had stated that previously there had
been quarrel between the deceased and her husband and on
the day of occurrence she had a quarrel with her husband
who had said that she could go wherever she wanted to go
and that thereafter she had poured kerosene on herself and
had set fire. Acquitting the accused this Court said :
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"A word uttered in a fit of anger or emotion without intending
the consequences to actually follow cannot be said to be
instigation. If it transpires to the court that a victim
committing suicide was hypersensitive to ordinary petulance,
discord and difference in domestic life quite common to the
society to which the victim belonged and such petulance,
discord and difference were not expected to induce a
similarly circumstanced individual in a given society to
commit suicide, the conscience of the court should not be
satisfied for basing a finding that the accused charged for
abetting the offence of suicide should be found guilty."
14. After considering the earlier judgments, Their Lordships
observed thus at paragraph 13 -
"13. .......... It is in a fit of anger and emotional. Secondly,
the alleged abusive words, said to have been told to the
deceased were on 25th July, 1998 ensued by quarrel. The
deceased was found hanging on 27th July, 1998. Assuming
that the deceased had taken the abusive language seriously,
he had enough time in between to think over and reflect and,
therefore, it cannot be said that the abusive language, which
had been used by the appellant on 25th July, 1998 drived the
deceased to commit suicide. Suicide by the deceased on 27th
July, 1998 is not proximate to the abusive language uttered
by the appellant on 25th July, 1998. The fact that the
deceased committed suicide on 27th July, 1998 would itself
clearly pointed out that it is not the direct result of the
quarrel taken place on 25th July, 1998 when it is alleged that
the appellant had used the abusive language and also told
the deceased to go and die. This fact had escaped notice of
the courts below."
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15. Their Lordships of the Apex Court further have reproduced
the suicide note in the said case in paragraph 14 of the judgment,
wherein Sanjay Sengar was directly implicated to be the person
responsible for suicide of the deceased. After reproducing the said
suicide note, Their Lordships observed thus at paragraph 15 -
"15. ........ The prosecution story, if believed, shows that the
quarrel between the deceased and the appellant had taken
place on 25th July, 1998 and if the deceased came back to
the house again on 26th July, 1998, it cannot be said that
the suicide by the deceased was the direct result of the
quarrel that had taken pace on 25th July, 1998. Viewed from
the aforesaid circumstances independently, we are clearly of
the view that the ingredients of 'abetment' are totally absent
in the instant case for an offence under Section 306
I.P.C. ......."
After these observations, Their Lordships allowed the appeal and
quashed and set aside the charge-sheet.
16. In the case of Madan Mohan Singh, [2010 ALL MR (Cri)
3245 (S.C.)] (cited supra), the petitioner was working as a DET in
Bharat Sanchar Nigam Ltd. The deceased i.e. Deepakbhai
Krishnalal Joshi has committed suicide. On the basis of complaint
filed by his wife, an FIR came to be registered. The petitioner had
applied for discharge. The trial Court rejected it. The Gujarat High
Court upheld the order of the trial Judge. Being aggrieved thereby
the petitioner has approached the Apex Court. The prosecution
heavily relied on the suicide note of the deceased wherein it was
stated that the petitioner was responsible for his death. The Apex
Court negating the contention on behalf of prosecution observed
thus:-
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"10. We are convinced that there is absolutely nothing in this
suicide note or the FIR which would even distantly be viewed
as an offence much less under Section 306 IPC. We could not
find 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 efforts and microscopic examination
of the suicide note and the FIR, all that we find 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 even intended that 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 office itself, it does not mean that the
accused intended or knew that the driver should commit
suicide because of this.
12. In order to bring out an offence under Section 306 IPC
specific 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 offence under Section 306 IPC. We are of the clear
opinion that there is no question of there being any material
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for offence under Section 306 IPC either in the FIR or in the
so-called suicide note.
13. It is absurd to even think that a superior officer like the
appellant would intend to bring about suicide of his driver
and, therefore, abet the offence. In fact, there is no nexus
between the so-called suicide (if at all it is one for which also
there is no material on record) and any of the alleged acts on
the part of the appellant. There is no proximity either. In the
prosecution under Section 306 IPC, much more material is
required. The courts have to be extremely careful as the
main person is not available for cross- examination by the
appellant-accused. Unless, therefore, there is specific
allegation and material of definite nature (not imaginary or
inferential one), it would be hazardous to ask the appellant-
accused to face the trial. A criminal trial is not exactly a
pleasant experience. The person like the appellant in the
present case who is serving in a responsible post would
certainly suffer great prejudice, were he to face prosecution
on absurd allegations of irrelevant nature. In the similar
circumstances, as reported in Netai Duta v. State of W.B.,
this Court had quashed the proceedings initiated against the
accused.
14. As regards the suicide note, which is a document of
about 15 pages, all that we can say is that it is an anguish
expressed by the driver who felt that his boss (the accused)
had wronged him. The suicide note and the FIR do not
impress us at all. They cannot be depicted as expressing
anything intentional on the part of the accused that the
deceased might commit suicide. If the prosecutions are
allowed to continue on such basis, it will be difficult for every
superior officer even to work." emphasis supplied)
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17. In case of S.S.Cheena (cited supra) , there was a dispute
between one Saurav Mahajan, who was a final year student of Law
Department and Harminder Singh, a fellow student of the same
class with regard to the theft of a mobile phone. This came to the
notice of M.D.Singh, the then Head of the Law Department who
asked both the students to submit their versions of the incident in
writing. The deceased and Harminder gave their versions and,
thereafter, M.D.Singh forwarded their versions to the University
authorities for taking necessary action. An inquiry was conducted
on 13th October 2003 by the Security Officer of the University Shri
S.S.Chheena. During the course of inquiry, on 17th October 2003,
Saurav Mahajan committed suicide by jumping in front of the
train. A suicide note was seized from the the pocket of the
deceased. On the complaint of father of the deceased, an offence
under Section 306 of I.P.C. was registered against Harminder
Singh. During the course of trial, S.S.Cheena was also impleaded
as accused. Being aggrieved by the framing of charge, S.S.Cheena
approached the High Court. The High Court refused to interfere.
Being aggrieved thereby, said S.S.Cheena approached the
Supreme Court. The Apex Court observed thus:
"27. This Court in Chitresh Kumar Chopra v. State (Govt. of
NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal
with this aspect of abetment. The Court dealt with the
dictionary meaning of the words "instigation" and "goading".
The Court opined that there should be intention to provoke,
incite or encourage the doing of an act by the latter. Each
person's suicidability pattern is different from the other. Each
person has his own idea of self-esteem and self-respect.
Therefore, it is impossible to lay down any straitjacket
formula in dealing with such cases. Each case has to be
decided on the basis of its own facts and circumstances.
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28. 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.
29. In the instant case, the deceased was undoubtedly
hypersensitive to ordinary petulance, discord and differences
which happen in our day-to- day life. Human sensitivity of
each individual differs from the other. Different people
behave differently in the same situation.
30. When we carefully scrutinize and critically examine the
facts of this case in the light of the settled legal position the
conclusion becomes obvious that no conviction can be legally
sustained without any credible evidence or material on
record against the appellant. The order of framing a charge
under Section 306 IPC against the appellant is palpably
erroneous and unsustainable. It would be criminal travesty of
justice to compel the appellant to face a trial without any
credible material whatsoever. Consequently, the order of
framing charge under Section 306 IPC against the appellant
is quashed and all proceedings pending against him are also
set aside." (emphasis supplied)
18. Recently, in the case of State of Kerala and others vs. S.
Unnikrishnan Nair and others, reported in AIR 2015 Supreme
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Court 3351 : [2015 ALL SCR 2824], Their Lordships had an
occasion to consider a similar case. In the said case, the Chief
Investigating Officer had committed suicide pending investigation
in a murder case. In the suicide note, it was alleged that two of his
subordinates were responsible for his this situation. There were
some allegations against one Advocate and the Chief Judicial
Magistrate. The First Information Report came to be lodged
against the subordinate officers. They filed a petition under
Section 482 of the Criminal Procedure Code. The Kerala High Court
quashed the First Information Report. Being aggrieved thereby,
the State went in appeal before the Hon'ble Apex Court. While
dismissing the appeal, the Their Lordships of the Apex Court
observed thus :
"13. As we find from the narration of facts and the material
brought on record in the case at hand, it is the suicide note
which forms the fulcrum of the allegations and for proper
appreciation of the same, we have reproduced it herein-
before. On a plain reading of the same, it is difficult to hold
that there has been any abetment by the respondents. note,
except saying that the the respondents The compelled him to
do everything and cheated him and put him in deep trouble,
contains nothing else. The respondents were inferior in rank
and it is surprising that such a thing could happen. That
apart, the allegation is really vague. It also baffles reasons,
for the department had made him the head of the
investigating team and the High Court had reposed complete
faith in him and granted him the liberty to move the court, in
such a situation, there was no warrant to feel cheated and to
be put in trouble by the officers belonging to the lower rank.
That apart, he has also put the blame on the Chief Judicial
Magistrate by stating that he had put pressure on him. He
has also made the allegation against the Advocate."
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10. In view of the said legal position and after considering the
facts of the case, we are of the opinion that it would be unjust to
ask the applicants to face the trial. The case is squarely covered
in the parameters laid down in State of Haryana vs. Ch. Bhajan
Lal and others, AIR 1992 SC 604. Therefore, we proceed to pass
the following order:-
ORDER
(I) Application stands allowed.
(II) Proceedings in R.C.C. No.2231 of 2022
pending before the learned Judicial Magistrate
First Class, Aurangabad and the Sessions Case, if
the case is committed to the Court of Sessions
arising out of FIR vide Crime No.215 of 2022 under
Section 306 read with Section 34 of the Indian
Penal Code, stands quashed and set aside as
against Applicant Nos.1 to 5.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/SEP24
