Sunday, 12 January 2020

Whether father can be held guilty for abetment of suicide of son if father is drunkard?

 In Father Peter Paul Antony Vs. State of Maharashtra,
reported in 2014 ALL MR (Cri) 3429, in paragraph nos. 20 and
21, this Court observed thus:
“20. In the light of above facts and settled legal
position, it is noted that even if a person would
commit suicide because of certain acts of the accused,

the accused cannot be said to have committed
abetment of suicide by the deceased unless the
accused would intend, while causing such acts to the
victim, that he/she should commit suicide. As such, it
is necessary for the prosecution to establish that by his
acts, the applicant/accused could reasonably foresee
that because of his conduct, the victim was almost
certain or at least, quite likely to commit suicide.
Unless this is established, a person cannot be charged
of having abetted commission of suicide, even if,
suicide has been committed as a result of some of the
acts committed by the accused.
In the case of Sanju (supra), it is seen that
even in the case where the accused had uttered words
such as "go and die" in abusive and humiliating
language which, allegedly, led to committing of
suicide, it was held that it would not amount to
instigation and consequently, there would be no
offence of abetment of suicide.
21. In the application on hand, there is
absolutely no evidence to establish that on the day of
incident or immediately prior to the deceased
committing suicide, applicant has instigated or
abetted deceased to commit the same. In that view of
the matter, applicant cannot be attributed the
requisite mens rea so as to hold him guilty as abettor.
This appears to be fundamental defect in the case of
prosecution and it does not spell out any offence
punishable under Section 305 of Indian Penal Code.
19. Thus, I am of the view that the deceased was not
denied any basic amenities to his life by the appellant. Further,

though it is the case of the prosecution that the deceased used to
prosecute his studies, there is nothing brought on record to show
that at any point of time, the deceased was declared unsuccessful
in any of his academic year. In the light of evidence of Hemant
(PW4) and Pooja (PW2), it is clear that there was no objection for
the deceased even to withdraw huge amounts from the account of
appellant by using ATM though the deceased, who was only in the
9th standard. Not only that, this evidence would show that the
deceased was also permitted to retain an amount of Rs.1,000/-
and looking to his age, in my view, it is a very huge amount. The
admitted position also speaks that the mother of the deceased was
a psychic patient having nothing to do with drinking of the
appellant. Therefore, he used to be always under depressed
condition. Different persons may react differently to the same
situation. Therefore, merely because the deceased by writing a
note mentioning about the drinking habit of his father and
committed suicide, in my view, it cannot be treated as an
abetment, especially when the prosecution evidence falls short to
show that there used to be ill treatment at the hands of the
appellant under the influence of liquor to the deceased so as to
drive the deceased to take the extreme step of his life.

In my view, the learned Judge of the Court below has
swayed away with the fact that the deceased boy was required to
commit suicide for an admitted position that the appellant was a
drunkard. Merely drinking can never be an abetment for a person
to commit suicide.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.391/2015

Ramrao Kisan Rathod, Vs State of Maharashtra 

CORAM:- V. M. DESHPANDE, J.
DATED :- 04.01.2020.
1. Present appeal is directed against the judgment and
order of conviction passed by learned Additional Sessions Judge,
Washim dated 03.09.2015 in Sessions Trial No.130/2013. By the
said judgment and order of conviction, appellant stands convicted
for an offence punishable under Section 305 of the Indian Penal
Code (IPC) and is directed to suffer rigorous imprisonment for ten
years and to pay a fine of Rs.10,000/-, in default to suffer simple
imprisonment for six months.

2. Heard Mr. Chande, learned counsel for appellant and
Mr.Thakare, learned A.P.P. for respondent-State. With assistance
of both the learned counsel, I have gone through the record and
proceedings. Both the learned counsel submitted their cases
vehemently and prayed for their respective reliefs.
3. Rameshwar Chavhan (PW9), while he was discharging
his duties as Police Sub Inspector (PSI) at Police Station, Washim,
sent one Police Constable Umesh Bibekar to Civil Hospital,
Washim to protect a dead body. On 25.10.2012, Rameshwar
Chavan carried inquest panchanama (Exh.36) in presence of
pancha witness Subhash Chavan (PW3). During the course of
preparing inquest panchanama, one chit was found in the left side
pocket of the shirt of the deceased. The same was seized under
seizure panchanama (Exh.-37). The chit (Exh.-28) is available on
record. The chit was containing recitals that the deceased
committed suicide being fed up by harassment and ill treatment at
the hands of the appellant. PSI Chavan (PW9) also prepared spot
panchanama (Exh.-59). While preparing spot panchanama, two
notebooks were seized from the drawing room of the house of the

deceased. Pooja (PW2), sister of the deceased, informed that
those notebooks are of the deceased.
4. In the meanwhile, Sandip Pawar (PW1), maternal
uncle of the deceased, lodged a written complaint (Exh.26). On
the basis of the written complaint, Varsha Mate (PW7), registered
the crime against the appellant vide Crime No.220/2012 for the
offence punishable under Section 306 of the IPC.
5. After registration of crime, investigation was taken up
by Rameshwar Chavan (PW9). He conducted usual investigation
and also sent the suicide note along with the note book to the
handwriting expert. After completion of investigation, charge was
framed for the offence punishable under Section 306 of the IPC.
Appellant denied the charge and claimed for his trial. In order to
prove its charge, prosecution examined in all ten witnesses and
also relied on various documents especially suicide note (Exh.-28).
During the course of trial, charge was altered and the appellant
was charged for the offence punishable under Section 305 of the
IPC, looking to the fact that the deceased was only 16 years of age
at the time of commission of suicide.

6. Dr. Swati Giri (PW6), at the relevant time, was working
as Government Medial Officer. On 25.10.2012, she conducted
autopsy on the dead body of Pavan Rathod. No external injuries
were found on the dead body. However, she noticed internal
injuries i.e. fracture of posterior horns of thyroid cartilage. She
also found marks situated above the level of thyroid cartilage
between larynx and chin. The probable cause of death is the result
of asphyxia due to hanging. She proved post mortem report
(Exh.-47).
In view of the medical evidence, it is clear that Pavan
met unnatural death due to step which he took to hang himself.
7. The question that this Court is required to answer is
whether appellant is responsible and/or has abetted commission
of suicide of deceased Pavan, as claimed by the prosecution.
8. In order to prove its charge of abetment, prosecution
has examined Sandip Pawar (PW1), Pooja Rathod (PW2), Renuka
Pawar (PW8) and also relied on suicide note (Exh.-28).

Sandip (PW1) is maternal uncle of deceased whereas
Pooja (PW2) is real sister of deceased. Renuka (PW8) is maternal
grandmother of deceased. All these three witnesses have turned
hostile. However, to reach to the truth, their evidence is required
to be seen.
9. Sandip (PW1) who has lodged his written report (Exh.-
26) on the basis of which printed FIR (Exh.-27) was prepared by
PSI Varsha Mate (PW7). In addition to these three closely related
witnesses of the deceased, the prosecution has also examined
Hemant Dongare (PW4), friend of the deceased and his mother
Asha Dongare (PW5). They have fully supported the prosecution
case. As per the report, marriage of the appellant took place with
Kavita in the year 1991 and from their wedlock, the couple was
having two daughters and one son. Son was deceased Pavan
whereas two daughters were Pooja (PW2) and Arti. According to
the report, appellant was habituated to liquor and was a drunkard.
According to the FIR, under the influence of liquor, he used to
take up quarrels with his wife Kavita and also used to maltreat his
three progeny. According to the report, the appellant’s behaviour
was narrated by the deceased.

10. Sandip (PW1) has turned hostile and did state before
the Court as to why said narration is mentioned in the FIR. In my
view, the said aspect is rightly considered by the learned trial
Court by observing that the report (Exh.26) was a written report.
Therefore, he cannot claim ignorance. Obviously, it appears that
to save skin of the appellant, he has turned hostile. Even though
the witnesses have turned hostile, the Courts are not barred from
evaluating their respective evidence to reach to the conclusion as
to whether the person charged has committed the offence or not.
Appreciation of the evidence of hostile witness has to be done by
Court with same standard when the Courts evaluate the evidence
of the prosecution witnesses who support the prosecution case
with a caveat that while appreciating the evidence of such hostile
witnesses, the Courts must put itself to the strict guard and should
not sway away with the evidence, as adduced by such witnesses
who do not support the prosecution.
11. Evidence of Vinodkumar (PW10), was Assistant State
Examiner of Documents of CID, clearly shows that the handwriting
in suicide note (Exh.-28) is identical to the handwriting in the

notebook which were of deceased Pavan. From opinion (Exh.88)
of Vinodkumar (PW10) and cross-examination of this handwriting
expert, it is crystal clear that his evidence is not at all challenged
during the course of trial by the defence.
12. Evidence of Hemant (PW4) would show that deceased
was his friend. His evidence would show that appellant and his
wife used to quarrel inter se. The appellant used to be under the
influence of liquor.
As per his evidence, on the date of incident i.e. on
24.10.2012, it was the day of Dashera. He and deceased went for
fetching Mango leaves and Marigold flowers. Thereafter, the
deceased went to attend his tuition. His evidence would further
show that at 02.00 p.m., he received a phone call from the
deceased requesting him to go to movie hall to view the movie
called “Student of the Year” and thereafter they, on the motorcycle
of the deceased, went to the cinema hall. His evidence would
show that thereafter the deceased purchased new jerkin and at
6.30 p.m. they returned to home and they were chit-chatting in
front of his house for about 15 minutes. Later on, both of them
went to their respective places. As per the evidence of Hemant

(PW4), after 15 minutes, he got the information that the deceased
has committed suicide.
13. Asha (PW5) mother of Hemant also deposed from the
witness box that appellant was a drunkard though she claims in
her evidence that there used to be frequent quarrels between
appellant and deceased. On the said aspect, evidence of Hemant
is conspicuously silent. Had there used to be quarrels between the
appellant and the deceased, it would not have missed from the
notice of Hemant, being a close friend of the deceased.
From the evidence of Asha, it is clear that her son
Hemant was elder than deceased as at the relevant time, Hemant
was studying in 12th standard whereas the deceased was studying
in 9th standard. What is important to note from the evidence of
Asha is that she was knowing that the deceased used to always
remain depressed apart from the fact that she has never seen
personally the appellant beating Pawan.
14. It is noteworthy to mention here that the evidence of
Hemant (PW4) shows the following recitals:
“After entering the Court, I have gone through my
statement.”

From the aforesaid evidence it is clear that Hemant had
read the previous statements which is impermissible in view of the
law laid down by this Court in Suresh s/o Purushottam
Ashtankar .vs. The State of Maharashtra and anr.; reported in
2015 ALL MR (Cri) 4243.
15. In the backdrop of the evidence of Ashabai (PW5), now
let us scrutinize evidence of Pooja (PW2) as the witness was
thoroughly cross-examined by the learned A.P.P. for the State who
was incharge of the brief. From the evidence, it is clear that on
24.10.2012 i.e. on the date of incident itself, deceased withdrew
Rs.12,000/- from the account of appellant from Automated Teller
Machine (ATM) for household expenses and out of that
Rs.11,000/- was given by him to Pooja (PW2) for household
expenses and Rs.1,000/- was kept by deceased himself. This
evidence of Pooja, in my view, has a ring of truth inasmuch as the
evidence of Hemant (PW4) on the day of incident in the noon
hours, the deceased made a phone call to Hemant and asked him
to accompany for watching a movie in the cinema hall and
thereafter he purchased a new jerkin. That shows that deceased
was having sufficient money with him apart from the fact that this

duo went to cinema hall and purchased clothes on the motorcycle
of deceased that shows that deceased was having his motorcycle
and therefore, in my view, it does not lie in the mouth of the
prosecution that the deceased was subjected to denial of the basic
amenities in his day to day life. Even evidence of Renuka (PW8),
maternal grandmother is very clear. In the cross-examination by
the learned A.P.P., it is brought on record that his daughter i.e.
mother of the deceased and wife of the appellant was a psychic
patient. Therefore, deceased used to be under great mental stress.
It is an admitted position on record that Kavita, wife of the
appellant, was mentally disturbed since long and has nothing to
do with drinking habit of the appellant. If that be so, if his mother
is having mental disturbances, her child Pavan, would also be
under mental stress and, in my view, this is the most natural
phenomenon.
16. The law on abetment to commit suicide is well
crystallized by numerous decisions of the Hon’ble Apex Court as
well as this Court. Section 107 of the IPC defines abetment of a
thing, which reads thus:

“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.”
17. The only difference between Sections 305 and 306 of
the Indian Penal Code is that Section 305 is a punishing section
for abetting an insane or a child whereas Section 306 of the IPC is
a punishing section for the accused who abetted any other person
to commit suicide. However, in my view, the parameters for
deciding the fact under Section 305 and Section 306 of the IPC are
identical.
18. In Father Peter Paul Antony Vs. State of Maharashtra,
reported in 2014 ALL MR (Cri) 3429, in paragraph nos. 20 and
21, this Court observed thus:
“20. In the light of above facts and settled legal
position, it is noted that even if a person would
commit suicide because of certain acts of the accused,

the accused cannot be said to have committed
abetment of suicide by the deceased unless the
accused would intend, while causing such acts to the
victim, that he/she should commit suicide. As such, it
is necessary for the prosecution to establish that by his
acts, the applicant/accused could reasonably foresee
that because of his conduct, the victim was almost
certain or at least, quite likely to commit suicide.
Unless this is established, a person cannot be charged
of having abetted commission of suicide, even if,
suicide has been committed as a result of some of the
acts committed by the accused.
In the case of Sanju (supra), it is seen that
even in the case where the accused had uttered words
such as "go and die" in abusive and humiliating
language which, allegedly, led to committing of
suicide, it was held that it would not amount to
instigation and consequently, there would be no
offence of abetment of suicide.
21. In the application on hand, there is
absolutely no evidence to establish that on the day of
incident or immediately prior to the deceased
committing suicide, applicant has instigated or
abetted deceased to commit the same. In that view of
the matter, applicant cannot be attributed the
requisite mens rea so as to hold him guilty as abettor.
This appears to be fundamental defect in the case of
prosecution and it does not spell out any offence
punishable under Section 305 of Indian Penal Code.
19. Thus, I am of the view that the deceased was not
denied any basic amenities to his life by the appellant. Further,

though it is the case of the prosecution that the deceased used to
prosecute his studies, there is nothing brought on record to show
that at any point of time, the deceased was declared unsuccessful
in any of his academic year. In the light of evidence of Hemant
(PW4) and Pooja (PW2), it is clear that there was no objection for
the deceased even to withdraw huge amounts from the account of
appellant by using ATM though the deceased, who was only in the
9th standard. Not only that, this evidence would show that the
deceased was also permitted to retain an amount of Rs.1,000/-
and looking to his age, in my view, it is a very huge amount. The
admitted position also speaks that the mother of the deceased was
a psychic patient having nothing to do with drinking of the
appellant. Therefore, he used to be always under depressed
condition. Different persons may react differently to the same
situation. Therefore, merely because the deceased by writing a
note mentioning about the drinking habit of his father and
committed suicide, in my view, it cannot be treated as an
abetment, especially when the prosecution evidence falls short to
show that there used to be ill treatment at the hands of the
appellant under the influence of liquor to the deceased so as to
drive the deceased to take the extreme step of his life.

In my view, the learned Judge of the Court below has
swayed away with the fact that the deceased boy was required to
commit suicide for an admitted position that the appellant was a
drunkard. Merely drinking can never be an abetment for a person
to commit suicide.
20. On reappreciation of the entire prosecution case, I am
of the opinion that the appellant is required to be acquitted of the
charge for which he has faced the trial. Consequently, I pass the
following order.
ORDER
(i) The appeal is allowed.
(ii) Judgment and order dated 30.09.2015 passed
by Additional Sessions Judge, Washim in Sessions Trial
No.130/2013, is quashed and set aside.
(iii) Appellant-Ramrao Kisan Rathod is acquitted
of the offence punishable under Section 305 of the
Indian Penal Code.
(iv) The appellant is on bail. His bail bonds stand
cancelled.

Print Page

No comments:

Post a comment