theory of conspiracy, as put forth by the prosecution, it must be
understood that the fact that Shivaji Gade had gone to Babybai's
house in the midnight, is not in dispute though what he did after
going there, may be in dispute. Thus, visit of Shivaji Gade could
not have been anticipated by Babybai Jadhav and/or the school
management. This is significant because the conspiracy could not
have been hatched based on such unanticipated happening.
CRIMINAL WRIT PETITION NO.825 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Sanjay Kumar K. Shinde
Versus
The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
Citation;2015 ALLMR(CRI)1085
DATED : 10th DECEMBER 2014.
The petitioner is one of the accused – Accused no.3
in Sessions Case No.47 of 2012, pending before the Court of
Sessions at Nashik. There are totally five accused in the said case,
including the applicant. The allegation against the applicant, and
the other accused is that they have committed an offence
punishable under section 306 of the IPC read with section 34 of
the IPC. The petitioner and the other accused had applied for
discharge, as contemplated under section 227 of the Code of
Criminal Procedure (for short 'the Code'), but the discharge
application was rejected by the learned Addl. Sessions Judge
before whom the trial of the case is pending. Being aggrieved
thereby, the petitioner has approached this Court invoking its
constitutional jurisdiction and inherent powers. According to the
petitioner, there is no case at all for proceeding against him, and
that the proceedings against him, therefore, deserve to be
quashed.
4
I have heard the learned counsel for the petitioner. I
have heard the learned APP With their assistance, I have gone
through the petition, and the annexures thereto.
I have also glanced through the case diary which has
been made available for my perusal by the learned APP
The petitioner and other accused are alleged to have
abetted the commission of suicide by one Shivaji Gade.
The circumstances leading to the death of the said
Shivaji Gade, as appearing from the prosecution case itself, are as
follows :
8
Shivaji Gade was in service as a teacher at Dr.
Rajendra Prasad Madhyamik Ashramshala, Shenit. The petitioner,
accused no.1 – Milind and accused no.2 – Shamrao, were all
working as teachers in the same school. One Babybai Jadhav
(accused no.4) was also working in the said school as a cook. On
1st January 2011, in the midnight, the deceased went to the house
of the said Babybai Jadhav. According to the case of the
prosecution, he had gone to demand water, but according to
Babybai Jadhav, he had behaved indecently, and had demanded
sex from her. Babybai Jadhav was, therefore, scared and escaped
from the house. She spent some part of the remaining night in the
Buddha Vihar, situated nearby. On the next day, she made a
complaint against Shivaji Gade to the Head Master of the said
Rajendra Prasad Prathamik Va Madhyamik Ashram Shala, and
later, also to the Secretary of the Satya Niketan Sanstha. A
departmental enquiry into the matter was held, and minor
punishment was inflicted upon the said Shivaji Gade. This
happened on 15th February 2011. The petitioner and the accused
nos.1 and 2 were the members of the enquiry committee.
On 24thFebruary 2011, said Shivaji Gade died by
falling from a train. On 4th March 2011, Smt.Meenabai, wife of
Shivaji Gade lodged a report with the police alleging that Shivaji
Gade was being treated improperly by the petitioner and the other
accused; and that a false complaint had been lodged against him
by the accused no.4 Baby Jadhav, and that due to humiliation felt
on that count, and the punishment inflicted on him, Shivaji Gade
had committed suicide. According to her, therefore, the
commission of suicide by the said Shivaji Gade was abetted by the
petitioner and other accused.
It is not clear, in the first place, that Shivaji Gade
indeed committed suicide. Whether the death was suicidal or
accidental, is not clear. However, the claim is that letters written
by Shivaji Gade were found after four days, and that from the
contents of the said letters, the death of Shivaji Gade can be
believed to be suicidal.
However, even if one proceeds on the basis that the
death of Shivaji Gade was suicidal, there is a fundamental defect
in the prosecution case. In view of this, I do not think it it is not
necessary to go deeper into the factual aspects of the matter,
though a prima facie evaluation of the material collected by the
police in the course of investigation is permissible,at this stage
also. The basic and fundamental defect in the prosecution case is
that the facts alleged by the prosecution, even if taken at face
value, do not disclose the ingredients of any offence punishable
The case of the prosecution at best is as follows :
under section 306 of the IPC.
That the petitioner and other accused conspired with
one another by manipulating a complaint of the accused no.4
Babybai Jadhav against the deceased Shivaji Gade. That Shivaji
Gade had actually gone to the house of Babybai Jadhav in the
midnight after having his new year dinner and only for demanding
water as he was thirsty. Babybai Jadhav, however, lodged a false
complaint that Shivaji Gade had outraged her modesty. On the
basis of such false complaint, a departmental enquiry was held and
Shivaji Gade was held to be guilty of misbehaviour, and inflicted
with a minor penalty. Shivaji Gade committed suicide because of
the humiliation caused to him by the accused persons and that, as
because of the torments caused to him by the accused persons, he
committed suicide, the accused persons are liable for abetting
commission of suicide by Shivaji Gade.
The petitioner's role in the matter is that he was a
member of the enquiry committee which held the alleged
misconduct of the Shivaji Gade as proved, which caused mental
13
trauma to him.
Surely, in this case, whether the death of Shivaji Gade
was indeed suicidal, and whether even if it was suicidal, whether
the suicide had been committed by him because of the torments
caused to him by the petitioner and other accused, is not clear at
all. However, there is a more fundamental question viz. Assuming
that Shivaji Gade indeed committed suicide because of the torments
caused to him by the act and conduct of the petitioner and the other
accused, can the petitioner be prosecuted on the allegation of having
abetted commission of suicide by the said Shivaji Gade, that needs to
be answered.
14
For answering this question, the legal concept of
'abetment' needs to be fully comprehended. The law relating to it
is found in Chapter V of the IPC. Section 107 of the IPC 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 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.
Explanation.1 A person who, by
wilful misrepresentation, or by
wilful concealment of a material
fact which he is bound to
disclose, voluntarily causes or
procures, or attempts to cause or
procure, a thing to be done, is
said to instigate the doing that
thing.
Illustration
A, a public officer, is
authorized by a warrant from a
Court of Justice to apprehend Z.
B, knowing that fact and also
that C is not Z, wilfully
represents to A that C is Z, and
thereby intentionally causes A to
apprehend C. Here, B abets by
instigation the apprehension of
C.
Explanation 2. Whoever, either
prior to or at the time of the
commission of an act, does
anything in order to facilitate
the commission of that act, and
thereby
facilitates
the
commission thereof, is said to
aid the doing of that act."
15
Section 108 of the IPC defines 'abettor'. It reads as
under :
"108. Abettor. A person abets
an offence, who abets either the
commission of an offence, or the
commission of an act which would
be an offence, if committed by a
person capable by law of
committing an offence with the
same intention or knowledge as
that of the abettor."
(Explanations and illustrations
omitted as not relevant for the
present.)
Here, the case is of abetment by instigation; and other
two modes of abetment, viz.: by conspiracy and by aiding, as
contemplated under the clause 'secondly' and 'thirdly' of Section
107 are out of question. The issue then comes to this : when a
person is said to 'instigate' another? The word 'instigate' literally
means to goad, or urge, forward, or to provoke, incite, urge, or
encourage, to do an (evil) act. It is well settled, that in order to
amount to abetment, there must be mens rea or community of
intention. Without knowledge or intention, there can be no
abetment and the knowledge and intention must relate to the act
said to be abetted, i.e., suicide, in this case. In order to constitute
the culpable act.
17
'abetment by instigation', there must be a direct incitement to do
The High Courts and even the Apex Court have, in a
number of cases, considered as to what constitutes an offence
under section 306 of the IPC.
In Criminal Writ Petition No.1131 of 2011 (decided
on 26th April 2012) I had an occasion to deal with this aspect and
after considering the law laid down in the following
pronouncements:
(i) Manish Kumar Sharma vs. State of Rajasthan
(1995 Criminal Law Journal 3066)
(ii) Vedprakash Bhaiji Vs. State of Madhya Pradesh
(1995 Criminal Law Journal 893)
(iii) Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh
(2002 Criminal Law Journal 2796)
(v)
Ramesh Kumar Vs. State of Chattisgarh
(2001 Criminal Law Journal 4724)
(iv) Cyriac s/o Devassia & Anr Vs. SubInspector of Police,
Kaduthuruthy & Anr
(2005 Criminal Law Journal 4322
8/11
Tilak
(vi) Madan Mohan Singh Vs. State of Gujarat
(2010) 8 Supreme Court Cases 628
the legal position in that regard was summarized by me as under :
“Even if a person would commit suicide because of
the torments of an accused, the accused cannot be
said to have abetted the commission of suicide by
the deceased, unless the accused would intend, while
causing torments to the victim/deceased, that he
should commit suicide. Even if the rigour of this
proposition is diluted, still, the least that would be
required is, that it should be shown that the accused
could reasonably foresee that because of his conduct,
the victim was almost certainor at least quite
likelyto commit suicide. Unless that the victim
should commit suicide, is either intended, or can be
reasonably foreseen and expected a person cannot
be charged of having abetted the commission of
suicide, even if the suicide has been committed as a
result of some of the acts committed by the accused.
A perusal of the reported judgments show that even
in cases where the accused had uttered the words
such as "go and die", in abusive and humiliating
language, which, allegedly, led to the committing of
instigation and that consequently, there would be
19
no offence of abetment of suicide.
suicide, it was held that it would not amount to
In the instant case, in the first place, there is no
sufficient basis for holding that the complaint lodged by accused
no.4 Babybai Jadhav against Shivaji Gade was false or malicious.
After all, that Shivaji Gade had gone to her house at 2.00 to 2.30
a.m on the new year night, and that he was drunk at that time,
appears to be supported by the material in the chargesheet. The
act of the deceased in going to the house of a woman who was
alone in the house at that time in the midnight, and after having
had a new year party and dinner, is itself rather curious, and the
least that can be said is that there is no material to indicate that
the complaint lodged by Babybai Jadhav, was false. Secondly,
even if the complaint of Babybai is assumed to be false, for the
sake of arguments, there is nothing to show that the enquiry
committee was aware of the same and deliberately gave a wrong
finding, and that too with the intention that Shivaji Gade should
commit suicide. There is nothing to show that accused no.4
Babybai Jadhav had conspired with the school management, and
that the school management had conspired with the petitioner or
other members of the enquiry committee, so as to return a wrong
finding – and that too with the object that Shivaji Gade should
thereby commit suicide.
20
While viewing the case, and more particularly the
theory of conspiracy, as put forth by the prosecution, it must be
understood that the fact that Shivaji Gade had gone to Babybai's
house in the midnight, is not in dispute though what he did after
going there, may be in dispute. Thus, visit of Shivaji Gade could
not have been anticipated by Babybai Jadhav and/or the school
management. This is significant because the conspiracy could not
have been hatched based on such unanticipated happening.
21
It is possible that some persons who might have been
against the deceased tried to take advantage of the complaint
lodged by Babybai Jadhav, and create a big uproar regarding the
incident resulting in loss of reputation of the deceased. The
ig
deceased, as a result of this, was apparently feeling humiliated. If
the deceased has taken the step of putting an end to his life
because of loss of reputation, and the humiliation felt by him on
account of being subjected to a departmental enquiry, it is indeed
unfortunate but, that by itself would not render the petitioner –
and even the other accused – to be prosecuted on the allegation of
having abetted the commission of suicide by the said Shivaji Gade.
22
The requisite mens rea – atleast on the part of the
petitioner – is clearly lacking in this case.
23
The parameters of criminal liability are well settled.
Merely because a suicide has been committed and taking of such
extreme step by the deceased is attributed to the acts of some
persons, such persons would not be liable to be prosecuted as
abettors to the suicide.
24
There must be some indication of the requisite mens
rea on their part before they can be successfully prosecuted.
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11/11
Tilak
The learned Addl. Sessions Judge did not consider
25
(2)WP-825-14
whether the police report and accompanying documents, disclosed
the ingredients of an offence punishable under section 306 of the
IPC, and whether even if it was assumed that Shivaji Gade
committed suicide on account of the departmental action taken
against him, and because of the punishment inflicted upon him,
26
whether that would amount 'to instigating him to commit suicide'.
This was a case where the petitioner was entitled to
ig
be discharged.
Petition is allowed.
28 The petitioner stands discharged.
27
Rule is made absolute accordingly.
(ABHAY M.THIPSAY, J)
29
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