Saturday 27 May 2017

What are essential ingredient of offence of abetment of suicide?

    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 cross­examination
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   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   facts   of   the   present   case
also,   there   is   no   nexus   between   so   called
suicide   and   any   of   the   alleged   acts   on   the
part of the applicant. There is no proximity
either.   Even   if   the   allegations   in   the
suicide   note   are   read   in   its   entirety,   the
same   would   not   even   remotely   suggest   that,
the applicant abetted, intentionally aided or
instigated   in   an   alleged   suicide   by   Vithal
Waghmare. 
9. The   Supreme   Court   in   the   case   of
S.S.   Chheena   V/s   Vijay   Kumar   Mahajan   and
another  (2010) 12 SCC 190
 in   para   25   observed   that,   the
abetment   involves   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.          
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 5283 OF 2016
Dadarao S/o Hausaji Dakore, The State of Maharashtra,

CORAM : S.S. SHINDE & 
                            K.K. SONAWANE, JJ.

PRONOUNCED ON : 6th March, 2017
      


Citation: 2017 ALLMR(CRI)1538

2. The brief facts as disclosed in the
application, are as under:­ 
The applicant is working on the post
of   Executive   Engineer,   Water   Supply,
Department, Zilla Parishad, Yavatmal. Earlier
the   applicant   was   posted   as   Executive
Engineer,   Zilla   Parishad,   Nanded   from
12.07.2012 till 31.07.2015. The applicant was
transferred   from   Nanded   to   Yavatmal   on   31st
July,   2015.  After   transfer   of   the   applicant
from   Nanded,   one   Shri   Navdunge   resumed   the
duties   as   Executive   Engineer   at   Nanded.   He
issued   the   work  order   on   7th  May,   2016,  and
allotted   some   work   to   one   Vitthal   Maruti
Waghmare (deceased), who was working in SubDivision,
Minor Irrigation on CRT basis. 
Shri   Nivdunge,   Executive   Engineer

came   to  be   arrested  on   10th  August,   2016   in
ACB trap while accepting bribe of Rs.50,000/­
and accordingly, Crime No. 78/2016 came to be
registered   against   him   at   Vajirabad   Police
Station,   Nanded.   One   Shri   Waghmare   Vithal
(deceased) was doing the work along with said
Nivdunge   during   the   relevant   period   and
hence,   ACB   Officer   had   called   Shri.Vithal
Waghmare (deceased) for interrogation and he
was   asked   to   submit   files   regarding   the
offence registered against Shri Nivdunge.
It is alleged  that,  on 22nd  August,
2016,   Vitthal   Maruti   Waghmare,   committed
suicide by hanging himself in the office of
Executive   Engineer,   leaving   behind   Suicide
Note, thereby stating that he was working on
CRT  basis   in   Sub   Division,   Minor   Irrigation
and he was assigned heavy workload, which he
was unable to carry out.  It is alleged that,

he   has   no   grudge   or   complaint   against
anybody. It is alleged that, he has committed
the   suicide   on   his   own,   and   nobody   can   be
held   responsible   for   his   act   of   suicide.
After receiving information of commission of
suicide by Vithal Waghmare, his relatives and
the   workers   gathered   on   the   spot   and
pressurized   the   police   officers   to   register
the offence against Chief Executive Officer,
Zilla Parishad. So also the relative of the
deceased   refused   to   take   dead   body   of
Waghmare unless the offence is registered. It
is the case of the applicant that the police
department,   under   political   pressure
registered   the   offence   at   about  23.05   hours
on   23rd  August,   2016   i.e.   after   48   hours,
which   is   after   thought,   wherein   one   Police
Constable   namely   Gangadhar   Sakharam   Shinde
i.e.   respondent   No.3,   is   shown   as
complainant.   When   applicant   came   to   know

through   newspaper   that   such   offence   is
registered   against   him,   he   filed   the
application for anticipatory bail before the
Sessions Judge, Nanded and the Sessions Judge
granted   anticipatory   bail   on   6th  September,
2016. 
3. The   learned   counsel   appearing   for
the applicant submits that, the applicant is
working as Executive Engineer in Water Supply
Division.   Said   deceased   Vithal   Waghmare   was
not working directly under the control of the
applicant   and   no   work   was   alloted   to   said
Waghmare   by   the   applicant.   The   learned
counsel   submits   that,   as   the   deceased
Waghmare   was   not   subordinate   to   the
applicant,   therefore,   there   was   no   occasion
to allot some work to him or to extract some
work   from   him.   The   learned   counsel   further
submits   that,   even   reading   of   the   suicide
note   as   it   is,   it   does   not   disclose   any

grudge   and   grievance   against   the   present
applicant   nor   it   discloses   any   cognizable
offence, more particularly, the offence under
section 306 of the IPC.  The learned counsel
submits   that,   lodging   of   the   complaint   is
only   misuse  of   process   of   law,   particularly
by the Police Officer so as to run away from
the public pressure and to save the skin of
police   department.   The   learned   counsel
further   submits   that,   the   import   of   total
complaint does not fulfill the ingredients of
section 306 of Indian Penal Code. There is no
complaint   alleged   by   anybody   including   the
family members of the deceased. 
4. The   learned   counsel   appearing   for
the   applicant   invites   our   attention   to   the
contents   of   the   suicide   note   and   submits
that, even upon reading the contents of the
said   suicide   note,   no   offence   is   disclosed
against   the   applicant.   He   invites   our

attention   to   the   provisions  of   Sections  107
and 306 of the Indian Penal Code and submits
that,   the   ingredients   of   the   said   offences
are not attracted, and therefore, no offence
is   disclosed   against   the   present   applicant.
The   learned   counsel   appearing   for   the
applicant,   therefore,   submits   that   the
application deserves to be allowed.
5. On   the   other   hand,   the   learned
A.P.P. appearing for the respondent/State and
the learned counsel appearing for respondent
no.2   jointly   submit   that,   there   is   suicide
note   and   also   during   investigation   the
Investigating   Officer   has   collected
sufficient   material,   which   would   clearly
disclose   the   alleged   offences   against   the
applicant.   Therefore,   it   is   submitted   that,
the application may be rejected. 
6. We have given careful consideration

to   the   submissions   advanced   by   the   learned
counsel   appearing   for   the   applicant,   the
learned A.P.P. appearing for respondent/State
and   the   learned   counsel   appearing   for
respondent   no.2.   We   have   also   perused   the
allegations   in   the   first   information   report
and also investigation papers, which are made
available   for   perusal.   The   relevant   portion
of   the   suicide   note   written   by   deceased
Waghmare reads thus :­ 
{Vernaculars omitted}
7. Upon   careful   perusal   of   the
aforementioned contents of the suicide note,
it   reveals   that,   Vithal   Waghmare   committed
suicide on 22nd  August, 2016. It appears from

the factual position brought on record that,
the present applicant was transferred on 31st
July,   2015,   from   Nanded   to   Yavatmal   as
Executive Engineer, Zilla Parishad, Yavatmal.
Therefore,   keeping   in   view   the   time   gap
between the alleged incident and transfer of
the applicant from Nanded to Yavatmal, it is
not   possible   to   hold   that,   the   applicant
instigated, abetted or intentionally aided in
commission of the suicide by Waghmare. 
8. At this juncture, it would be useful
to   make   a   reference   to   the   judgment   of   the
Supreme   Court   in   the   case   of  Madan   Mohan
Singh V. State of Gujarat and anr.1  In said
case,   the   deceased   therein   was   working   as
driver   under   the   Ex.Officer   i.e.   appellant
therein. The said driver allegedly committed
suicide   due   to   harassment   and   insulting
behaviour   by   the   appellant   therein.  He   left
1 2010 AIR SCW 5101

the  suicide  note   alleging   therein   that,  the
appellant   therein   asked   the   driver   to   keep
the keys of the vehicle on the table and not
to   take   away   them.   It   was   further   stated
that,   “I   am   going   to   commit   suicide   due   to
his   functioning   style.   Alone   M.M.   Singh,
D.E.T. Mcrowave Project is responsible for my
death. I pray humbly to the officers of the
department   that  you  should   not   cooperate   as
human being to defend M.M. Singh has acted in
breach   of   discipline   disregarding   the   norms
of   discipline.   I   humbly  request  the  Enquiry
Officer   that   my   wife   and   son   may   not   be
harassed.   My   life   has   been   ruined   by   M.M.
Singh.” 
The   Supreme   Court   in   the   facts   of
aforesaid case, while explaining the scope of
Sections 306 and 294 vis­a­vis, the facts of
that case in para 9 held thus:­ 

"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   so­called   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 cross­examination
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   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   facts   of   the   present   case
also,   there   is   no   nexus   between   so   called
suicide   and   any   of   the   alleged   acts   on   the
part of the applicant. There is no proximity
either.   Even   if   the   allegations   in   the
suicide   note   are   read   in   its   entirety,   the
same   would   not   even   remotely   suggest   that,
the applicant abetted, intentionally aided or
instigated   in   an   alleged   suicide   by   Vithal
Waghmare. 
9. The   Supreme   Court   in   the   case   of
S.S.   Chheena   V/s   Vijay   Kumar   Mahajan   and
another2,  in   para   25   observed   that,   the
abetment   involves   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,
2 (2010) 12 SCC 190

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.  
10. We   have   carefully   scrutinized   the
documents placed on record, in the light of
the   settled   legal   position,   we   are   of   the
opinion   that,   further   continuation   of   the
investigation/proceedings on the basis of the
F.I.R.   bearing   Crime   no.   136   of   2016
registered   with   Vajirabad   Police   Station,
Nanded under section 306 of the Indian Penal

Code   qua   the   applicant   would   be   abuse   of
process of law. Hence the same is quashed and
set   aside.     The   application   is   allowed   in
terms   of   prayer   clause   `B'   and   the   same
stands   disposed   of.   Rule   made   absolute
accordingly. 
(K.K. SONAWANE, J.)      (S.S. SHINDE, J.)


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