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2013 DIGILAW 620 (BOM)

Gokul s/o. Hundomal Karda v. State of Maharashtra

2013-03-12

M.T.JOSHI

body2013
JUDGMENT The present appellant who is convicted by learned IIIrd Adhoc Additional Sessions Judge, Aurangabad on 9th January, 2004 in Sessions Case no. 74 of 2003 for the offence punishable under section 306 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 2,000/-, has preferred the present Appeal. 2. The allegations in nutshell are as under:- That deceased Kailash S/o Manikrao Nandgauli has committed suicide on 21.7.2002 at the workshop where he was working in Aurangabad city. Earlier, the deceased was residing at Bhusawal. The present appellant Gokul Karda and the deceased were fast friends at Bhusawal. They were even partners in one welding works. Certain money transactions between them were there. The deceased, however, was unable to succeed in the business at Bhusawal. In the circumstances, he sold ground floor of his house at Bhusawal to P.W. 5 Sureshkumar for consideration of Rs. 77,000/-. The first floor of his house was sold by him to P.W. 6 Ashok Ahuja for consideration of Rs. 46,000/-. Out of these sale proceeds, he gave handloan of Rs. 65,000/- to the present appellant. The appellant is ex-president of Municipal Council, Bhusawal. The appellant agreed to pay interest at the bank rate. The deceased took rest of the consideration amount with him and left Bhusawal and started his business at Solapur. However, he could not succeed there. In the circumstances, he came at Aurangabad as his sister Durga w/o Prakash Ambekar was residing there. At Aurangabad the deceased started working in the shop of P.W.2 Prakash Ambekar i.e. the husband of his sister. He used to carry the fabrication work in the shop. On 21st July, 2002, without intimating anybody, the deceased went to Bhusawal. His son P.W.8 Prasad, therefore, made enquiry about the deceased with his paternal uncle P.W.4- Waman on phone. He came to know that the deceased had been to Bhusawal and resided with P.W.4 Waman. The deceased had gone to Bhusawal to recover the hand-loan given to the present appellant. However, the appellant avoided to repay the amount. In the circumstances, the deceased returned to Aurangabad on 24th July, 2002, after taking meals in the house of P.W.4 Waman Nandgauli at Bhusawal. The deceased had gone to Bhusawal to recover the hand-loan given to the present appellant. However, the appellant avoided to repay the amount. In the circumstances, the deceased returned to Aurangabad on 24th July, 2002, after taking meals in the house of P.W.4 Waman Nandgauli at Bhusawal. However, in the night between 24th July, 2002 and 25th July, 2002, the deceased committed suicide in the fabrication workshop of his brother-in-law by latching the same from inside. On 25th July, 2002 in the morning, the dead body of the deceased was found hanging. In the circumstances, the brother-in-law i.e. P.W.2 Prakash reported the incident to Jinsi Police Station. After registering accidental death (A.D.) case, the investigation was started. The inquest panchanama was recorded, postmortem examination of the dead body was conducted, which showed that the deceased died due to asphyxia due to hanging. After the post-mortem examination of the dead body, the dead body was handed over to the son i.e. P.W.8 Prasad. At the time of recording of panchanama of spot of occurrence at Exhibit 14, inter-alia, a written note was found in the shirt pocket of the deceased. It was a suicide note (Exhibit 36). The suicide note recited that the deceased had given the hand-loan to the present appellant for few days as there were earlier money transactions between them. However, for one and half year, the appellant did not repay the amount. In the whole of the life of the deceased, he had witnessed many upheavals but was not able to bring stability in his life. In the circumstances, the marriage of his daughter was settled and after the Diwali, the marriage ceremony was to be celebrated. In the circumstances, the deceased many a time met the appellant and made the demand of money. However, the appellant avoided to pay the same and ultimately, refused to pay the amount. Though the deceased requested him for repayment of the amount, he refused to pay the same and even threatened the deceased and prevented him even from visiting the appellant. In the circumstances, by giving all the details of the life history, the deceased ultimately noted that he was guilty, for all the sorry affairs and tendered apology to his near relatives. 3. In the circumstances, by giving all the details of the life history, the deceased ultimately noted that he was guilty, for all the sorry affairs and tendered apology to his near relatives. 3. In view of this chit (suicide note), the son of the deceased filed the F.I.R. Further investigation of seizure of natural documents in the handwriting of the deceased from the workshop was carried. The natural documents as well as suicide note (Exh. 36) were sent for examination thereof to the handwriting expert. P.W.11 Parshuram Dhotre, the examiner of the documents, had examined the documents. He found that the handwriting on the suicide note (Exh. 36) and the handwriting on the natural documents is of one and the same person. 4. After completion of the investigation, the charge-sheet was filed. 5. Before the learned Special Judge, in all 12 witnesses were examined. Those were complainant P.W.8 Prasad, two of the purchasers of the house, panch witnesses in whose presence the spot panchanama of occurrence and inquest panchanama were recorded, the medical officer who had examined the dead body of the deceased, the examiner of the documents and investigating officer etc. 6. The learned Sessions Judge believed that the suicide note was seized from the person of the deceased. On the basis of the evidence, as detailed supra, the learned Sessions Judge also came to the conclusion that the deceased had lent the amount to the present appellant. Further, the suicide note was held to have been proved. By perusing the contents of the suicide note, the learned Sessions Judge came to the conclusion that the appellant intentionally aided the commission of suicide by the deceased. It was further observed that the liability of the appellant arises on the basis of equitable doctrine of unjust enrichment. Further, according to the learned Sessions Judge, non-repayment of the loan, when the deceased was in dire necessity of the amount, is an illegal omission resulting in the consequence of aiding deceased Kailas in commission of suicide intentionally. Hence, the conviction and sentence, detailed supra, came to be recorded. 7. Learned counsel for the appellant Mr. Further, according to the learned Sessions Judge, non-repayment of the loan, when the deceased was in dire necessity of the amount, is an illegal omission resulting in the consequence of aiding deceased Kailas in commission of suicide intentionally. Hence, the conviction and sentence, detailed supra, came to be recorded. 7. Learned counsel for the appellant Mr. K.C. Sant did not advance any argument on the facts as to whether the suicide note was found on the person of the deceased, as to whether the suicide note was in the handwriting of the deceased or even as to whether any amount was lent by the deceased to the appellant. Mr. Sant, however, vehemently submitted that the reading of the suicide note, as a whole, would not show that the present appellant has intentionally abetted the commission of the suicide by the deceased. He submitted that the suicide note (Exh. 36) would show that the deceased had suffered failure after failure in his life and only at the fag end of the suicide note, he recites of non-repayment of the hand-loan by the appellant to the deceased. In the circumstances, Mr. Sant submitted that the learned Sessions Judge has wrongly convicted the appellant. 8. On the other hand, learned A.P.P. Mr. B.J. Sonawane submitted that the facts and evidence on record would show that continued conduct of the appellant in driving away the deceased when he was making a legitimate demand for return of the amount in the background known to the appellant that the marriage of the daughter of the deceased was settled, would go to show that there was intentional abetment by the appellant to the commission of the suicide of the deceased and hence, Mr. Sonawane submitted that the appeal be dismissed. 9. The evidence on record would show that the deceased had executed suicide note (Exh. 36) as is clear from the statement of P.W.1 - Ramchandra, a panch witness in whose presence the chit was recovered from the person of the deceased and the deposition of the handwriting expert P.W. 10 - Dattatraya Ausekar. The statements of two purchasers of the house of the deceased would show that the deceased had money to give hand-loan to the appellant and in the circumstances, the prosecution has proved beyond reasonable doubt all these facts. Furthermore, Mr. The statements of two purchasers of the house of the deceased would show that the deceased had money to give hand-loan to the appellant and in the circumstances, the prosecution has proved beyond reasonable doubt all these facts. Furthermore, Mr. K.C. Sant, learned counsel for the appellant did not advance any argument on these facts. 10. In view of the above circumstances, following points arise for my determination : i) Whether the prosecution has proved that the appellant has abetted the commission of suicide of deceased Kailash Manikrao Nandgauli in the night between 24.7.2002 and 25.7.2002 ? ii) What order? My answer to point No. (i) is in the negative and the appellant is acquitted of the offence punishable under section 306 of the I.P. Code. REASONS : 11. The suicide note (Exh. 36) is the key to the answer to find out as to whether there was abetment by the appellant for commission of the suicide of the deceased. All other evidence would show that the deceased had sufficient money to lend to the appellant and that the deceased, previous to his suicide, had been to Bhusawal for two days to pursue the appellant to repay the amount. The intrinsic evidence i.e. suicide note (Exh. 36) would also contribute in corning to the conclusion as to whether there was abetment for commission of suicide of the deceased. 12. Both the sides placed before me certain authorities on this count to find out as to whether the act constitutes abetment to commission of suicide. 13. Before adverting to the authorities on this point, it would be relevant to note the history which led to enactment of the provision of section 306 of the I.P. Code. It would show that the provision was incorporated in the I.P. Code for the purposes of abolition of a cruel system of sati in Hindu religion. Keeping the history beside, for a moment, it would be useful to take into consideration the recent authorities on this topic. 14. In the case of “Amit Kapoor Vs. Ramesh Chander and anr.” (2012) 9 Supreme Court Cases 460 : (2012 ALL MR (Cri) 3806 (S.C.)], relied on by Mr. B.J. Sonawane, learned A.P.P., the person alleged to have abetted the commission of suicide was discharged by the Sessions Court, at the time of framing of the charge. 14. In the case of “Amit Kapoor Vs. Ramesh Chander and anr.” (2012) 9 Supreme Court Cases 460 : (2012 ALL MR (Cri) 3806 (S.C.)], relied on by Mr. B.J. Sonawane, learned A.P.P., the person alleged to have abetted the commission of suicide was discharged by the Sessions Court, at the time of framing of the charge. In the circumstances, relative scope of law on discharge of the accused and framing of charge against the accused was explained in detail by highlighting the distinction between section 227 and section 228 of the Code of Criminal Procedure. The Supreme Court has made certain observations as to when an act would be called as an abetment by instigation. It was further cautioned that finding of suicide note on the person of the deceased implicating the accused would, at the stage of framing of charge, be sufficient, which would obviously subject to the final view that the Court may take upon trial. In that case, the accused had made certain wrong statement that he had paid an amount of Rs. 24 Lakhs for purchasing the victim's property and that the property was then owned by him. In the circumstances, it was held that whether it was misrepresentation of facts by accused and was an attempt to harass the deceased and her family which ultimately led to commit suicide, is a question which could have been examined at the trial. 15. In the case of “M. Mohan V. State represented by the Deputy Superintendent of Police” AIR 2011 S.C. 1238 : [2011 ALL MR (Cri) 1659 (S.C.)], relied on by Mr. K.C. Sant, learned counsel for the appellant in paragraphs 45 and 46, the Hon'ble Supreme Court has observed as under:- “45. 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. 46. The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under section 306, I.P. Code, there has to be a clear mens rea to commit the offence. 46. The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under section 306, I.P. Code, 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 this act must have been intended to push the deceased into such a position that he/she committed suicide.” 16. In the said case, the deceased lady and her husband was denied a ride in a family car by other in-laws. The in-laws taunted the deceased by saying that if she wanted to travel by a car, she should procure a car from her parents. In the circumstances, the deceased made a demand of a car to her father on the same day and committed suicide by hanging herself in the bedroom. In those circumstances, it was held that in a joint family the instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. Therefore, on perusal of the entire material on record and considering the earlier declaration of the law, the Hon'ble Supreme Court came to the conclusion that there is no abetment to the commission of suicide by instigation. 17. In the case of “Sharad Birdhichand Sarda v. State of Maharashtra” AIR 1984 Supreme Court 1622 : [2009 ALL SCR (O.C.C.) 281], relied on by Mr. K.C. Sant, learned counsel for the appellant, it was observed that the recitals in the letter showed that the deceased Manju was passing through difficult time and was trying to control herself well and good. However, as the things did not move, she thought that she would have to evolve some other methods. Further, the recitals in other letters were taken into consideration and it was found that since the deceased was unable to withstand the tension, she had committed suicide. It was further found that the deceased was highly emotional and sensitive woman and therefore it could not be called as abetment by the accused to the commission of suicide of the deceased. 18. It was further found that the deceased was highly emotional and sensitive woman and therefore it could not be called as abetment by the accused to the commission of suicide of the deceased. 18. By keeping in mind the ratio of the authorities, it would be useful to have a deeper look in the suicide note (Exh. 36), in the present case. 19. The relevant portion of the suicide note (Exh. 36) is as under :- “My friend Gokul Karda (appellant), on whom, I relied for whole of my life, is responsible for my suicide. There were many monetary transactions between me and Gokul. I had lent him an amount of Rs. 65,000/- from the sale proceeds of my house for some days. Gokul promised to repay the amount alongwitn the interest at the bank rate. It had occurred one and half year ago. Thereafter, I left Bhusawal. There were many upheavals in my life, I was unable to make myself stable anywhere. The luck was not favouring me. In the situation, the marriage of my daughter is settled. The proposal was good. The engagement ceremony took place and the marriage was to be performed after next Deewali. Therefore, I was often visiting Gokul. My brother Umakant now should take responsibility of the marriage of my daughter. He may obtain loan from the relatives. Safar as my sister Ushatai and her husband is concerned, I have given much trouble to them, due to my conduct. I was however not doing this intentionally. However, such instances went on occurring. I am now fed up with all these things. I have suffered lot of things and is now exhausted. Now, the future of Puja (daughter) is in your hand. I am the criminal ( xqUgsxkj ) of all of you. I had asked for repayment of money to Gokul. He initially avoided and lastly refused to repay the money. I therefore even asked for mercy, but he ultimately told me to do whatever I can. He even warned me not to visit his door and drove me away. In the circumstances, if the marriage of my daughter is broken, what should I do. I will not be able to show the face in the society. I am already indebted to so many persons. He even warned me not to visit his door and drove me away. In the circumstances, if the marriage of my daughter is broken, what should I do. I will not be able to show the face in the society. I am already indebted to so many persons. I will not be able to raise the money for the marriage and therefore there was no other way for me than to commit suicide.” 20. The suicide note, no doubt, would show that the present appellant who was one time fast friend of the deceased had deceived him by not repaying the hand loan. The suicide note as well as the evidence on record would show that though the deceased had sold his house and kept with him some of the consideration amount, by paying balance to the appellant, still, he was indebted to many persons. After leaving Bhusawal, he went to Solapur to settle there. The evidence of his son P.W.8 - Prasad would show that the family was at Solapur for one and half year. The deceased was not able to settle himself there and therefore the family came to Aurangabad and took protection in the family of his sister. The suicide note would show that there were many upheavals in the life of the deceased and he was not able to make himself stable anywhere. To repeat, he was indebted to many people and in the circumstances, refusal to repay the amount of hand-loan by the present appellant was the last straw in the background of arrangement of marriage function of the daughter of the deceased. 21. It is no doubt that it is immoral on the part of the present appellant not to repay the amount and to refuse the transaction itself. The evidence of PW8 Prasad, the son of the deceased would, however, show that none of the family members was aware of any of the monetary transactions of the deceased. In all these circumstances, the question would be as to whether the appellant has intentionally instigated the commission of suicide of the deceased solely. 22. The evidence on record would show that the cause for commission of the suicide solely was not the refusal to make repayment of the loan by the appellant. The deceased remained unstable throughout his life. He was indebted to many persons. 22. The evidence on record would show that the cause for commission of the suicide solely was not the refusal to make repayment of the loan by the appellant. The deceased remained unstable throughout his life. He was indebted to many persons. While he was the partner in the welding workshop at Bhusawal with the appellant, due to his failure, the deceased was required to sell his house and try to settle at Solapur. Ultimately, he had to take protection in the house of his married sister, which is considered as demeaning act in the society. Ultimately, the marriage of his daughter was settled and for that purpose, he was in need of money. Lastly as the appellant refused to repay the amount and even insulted the deceased, the deceased committed suicide. 23. Taking into consideration all these facts, in my view, though the act of the appellant needs to be deprecated, this would not amount to intentional instigation to the commission of suicide of the deceased and in the circumstances, the reasoning of the learned Sessions Judge, as detailed supra, cannot be upheld. In the circumstances, the appeal deserves to be allowed. 24. In the result, the appeal is allowed. The order of the learned IIIrd Adhoc Additional Sessions Judge, Aurangabad, dated 09.01.2004, passed in Sessions Case No. 74/2003 is hereby set aside and the appellant is acquitted of the offence punishable under section 306 of the I.P. Code. The fine amount, if any paid by the appellant be refunded to him. In the circumstances, his bail bonds shall stand cancelled. Appeal allowed.