Court, relying upon the catena of decisions of the Hon'ble
Supreme Court, held that it is necessary for the prosecution to at
least prima facie establish that accused had an intention to aid
or instigate or abet the deceased to commit suicide and in the
absence of availability of such material, accused cannot be
compelled to face trial for the offence punishable under Section
306 of the Indian Penal Code.
This Court in similar set of facts in the case of Seema
Ajay Bhoosreddy vs. State of Maharashtra – [2012(2)
Bom.C.R.(Cri.)502] observed that deceased student was
hypersensitive, unable to face ground realities of life to ordinary
petulance which happen in day to day life. Petitioner therein was
a Professor in a Dental College and a student of BDS Course had
committed suicide. It was alleged in F.I.R. that petitioner and
other Doctors targeted the deceased and asked her to complete
difficult course within a short time and had threatened her and
so she committed suicide. A suicide note was also found during
investigation in the said case. In this background, the learned
Single Judge (B.R. Gavai, J.) held that there is no material which
can even be said to be prima facie sufficient to establish that
applicants had done any act which can be said to be with an
intention to aid or instigate or abet the deceased to commit
suicide.
08] From the above, it is apparent that law as to what are
the requirements to constitute an offence punishable under
Section 306 of the Indian Penal Code is well crystallized in the
above referred authorities. In the case on hand, suicide note
found on the spot shows that deceased was blamed for theft of
mobile and so she committed suicide. Further from F.I.R., it can
be revealed that a student has complained to the applicant that
her mobile has been stolen and the said student expressed her
suspicion for commission of theft on Nikita. It is not even the
case of the prosecution that applicant suspected the deceased
for theft of mobile of another student and she falsely blamed the
deceased for the theft. Though the entire happening depicts an
unhappy state of affairs, we do not find either from the
allegations in F.I.R. or from the suicide note that applicant was
responsible in any way for commission of suicide by Nikita.
Prima facie, on the face value of F.I.R. and suicide note, if taken
as they are, would not amount to abetment as defined under
Section 107 of the Indian Penal Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.93 OF 2017
Smt. Jayashree wd/o Sunil Kotgirwar,
V
State of Maharashtra,
CORAM : B.R. GAVAI & KUM. INDIRA JAIN, JJ.
DATE : 20th MARCH, 2017.
Citation: 2017 ALLMR(CRI) 1695
By this application under Section 482 of the Code of
Criminal Procedure, applicant is seeking quashing of F.I.R. in
Crime No.26/2016 registered at Ramnagar Police Station, Wardha
for the offence punishable under Section 306 of the Indian Penal
Code.
02] The facts giving rise to the application may be stated
in brief as under :
(I) Non-applicant no.2-complainant Valmik Andraskar is
resident of Gajanan Nagar, Wardha. His family
consists of his wife and two daughters. Nikita was
younger daughter of complainant. She was studying
in 10th Standard in Kesrimal Girls School, Wardha.
(II) Incident occurred on 29/01/2016 in the afternoon.
Non-applicant no.2 was working as carpenter and his
wife was serving in Cotton Mill at Waigaon. At around
05:00 p.m., when non-applicant no.2 was at his work
place, he received a phone call from his wife Sangita
that she had been to school of Nikita for attending a
programme and that time, applicant, teacher of
Nikita, told her that she had received a complaint
from one student regarding theft of a mobile phone
and the said student suspects that Nikita had stolen
her mobile. Non-applicant no.2 asked his wife to go
home and inquire from Nikita. Accordingly, Sangita
went home and saw that Nikita hanged herself with a
ceiling fan.
(III) Non-applicant no.2 then went to police station and
lodged report alleging therein that by putting a false
blame on his daughter and threatening her to
discover a mobile, abetted Nikita to commit suicide.
Criminal law was set into motion after registering F.I.R.
During investigation, suicide note has been recovered
from the spot in which Nikita stated that she was
blamed for committing theft of mobile and so she puts
an end to her life.
(IV) In the above background, applicant, who has been
arrayed as an accused, has approached this Court for
quashing F.I.R.
(V) By order dated 13/02/2017, this Court issued notice to
non-applicants and by way of an ad interim order
directed non-applicant no.1 not to file charge-sheet in
the said crime without the leave of the Court. In
pursuance to notice, non-applicant/State filed its reply
and resisted the challenge to F.I.R.
03] Mrs. Prajakta Chaudhari, learned Counsel appearing
on behalf of applicant submits that there is no whisper either in
suicide note or F.I.R. against the applicant that she was
responsible in any way for alleged suicide committed by Nikita.
She submits that allegations, even if taken at their face value,
would not constitute an abetment so as to attract the provisions
of Section 306 of the Indian Penal Code. It is submitted that nonapplicant
no.1, in the facts and circumstances of the present
case, ought not to have registered the crime since the offence of
abetment to commit suicide was not at all attracted against the
applicant.
04] Per contra, Shri T.A. Mirza, learned Additional Public
Prosecutor for the non-applicant/State submits that suicide note
would indicate harassment by applicant by falsely blaming Nikita
for theft of mobile of another student and had the applicant not
thrown the blame on the deceased, she would not have been
compelled to take the extreme step of putting an end to her life.
The learned Additional Public Prosecutor seeks rejection of the
application on the ground that there is sufficient material to
prosecute the applicant.
05] Before considering the prayer for quashing of FIR
under Section 482 of the Code of Criminal Procedure, we find it
appropriate to keep in mind essential ingredients necessary to
attract the provisions of Section 306 of the Indian Penal Code
and the settled law in that regard. The learned Counsel for
applicant pressed into service recent decisions of this Court in (i)
Dilip Ramrao Shirasao and others vs. State of
Maharashtra and another [2016 ALL MR (Cri) 4328],
(ii) Ramesh Someshwarrao Tayde and another vs. State of
Maharashtra and another [2016 ALL MR (Cri) 5049 (iii)
Sandip Ajay Wadse and others vs. State of Maharashtra
and another in Criminal Application No.428/2016 and (iv)
Rajendrakumar Bajranglal Sharma and others vs. State of
Maharashtra and another in Criminal Application
No.593/2016 to substantiate her submissions.
06] In Dilip Ramrao Shirasao and others (supra), this
Court, relying upon the catena of decisions of the Hon'ble
Supreme Court, held that it is necessary for the prosecution to at
least prima facie establish that accused had an intention to aid
or instigate or abet the deceased to commit suicide and in the
absence of availability of such material, accused cannot be
compelled to face trial for the offence punishable under Section
306 of the Indian Penal Code. It would be appropriate to
reproduce paragraphs 11 to 18 of the said decision here for
ready reference :
“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 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 25th 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 27th 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 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 v. 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 sisterin-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 V. 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 :
"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.
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 chargesheet.
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 :-
"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 for offence under
Section 306 IPC either in the FIR or in the socalled
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)
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.
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 travesty of justice to
compel the appellant to face a criminal 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 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. The note, except
saying that the the respondents 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.”
07] This Court in similar set of facts in the case of Seema
Ajay Bhoosreddy vs. State of Maharashtra – [2012(2)
Bom.C.R.(Cri.)502] observed that deceased student was
hypersensitive, unable to face ground realities of life to ordinary
petulance which happen in day to day life. Petitioner therein was
a Professor in a Dental College and a student of BDS Course had
committed suicide. It was alleged in F.I.R. that petitioner and
other Doctors targeted the deceased and asked her to complete
difficult course within a short time and had threatened her and
so she committed suicide. A suicide note was also found during
investigation in the said case. In this background, the learned
Single Judge (B.R. Gavai, J.) held that there is no material which
can even be said to be prima facie sufficient to establish that
applicants had done any act which can be said to be with an
intention to aid or instigate or abet the deceased to commit
suicide.
08] From the above, it is apparent that law as to what are
the requirements to constitute an offence punishable under
Section 306 of the Indian Penal Code is well crystallized in the
above referred authorities. In the case on hand, suicide note
found on the spot shows that deceased was blamed for theft of
mobile and so she committed suicide. Further from F.I.R., it can
be revealed that a student has complained to the applicant that
her mobile has been stolen and the said student expressed her
suspicion for commission of theft on Nikita. It is not even the
case of the prosecution that applicant suspected the deceased
for theft of mobile of another student and she falsely blamed the
deceased for the theft. Though the entire happening depicts an
unhappy state of affairs, we do not find either from the
allegations in F.I.R. or from the suicide note that applicant was
responsible in any way for commission of suicide by Nikita.
Prima facie, on the face value of F.I.R. and suicide note, if taken
as they are, would not amount to abetment as defined under
Section 107 of the Indian Penal Code.
09] In this view of the matter, applicant can not be
compelled to face trial for the said offence as allowing the
continuance of criminal action would amount to abuse of process
of law. We are, therefore, inclined to allow the application.
Hence, the order :
i. Criminal Application No.93/2017 is allowed.
ii. Rule is made absolute in terms of prayer clause (i).
iii. No order as to costs.
(Kum. Indira Jain, J) (B.R. Gavai, J.)
No comments:
Post a Comment