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2014 DIGILAW 2435 (BOM)

Sanjay Kumar K. Shinde v. State of Maharashtra

2014-12-10

ABHAY M.THIPSAY

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JUDGMENT :- Rule. By consent, Rule made returnable forthwith. 2. By consent, heard finally forthwith. 3. The petitioner is one of the accused - Accused no.3 in Sessions Case No.4 7 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 al1 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. 5. I have also glanced through the case diary which has been made available for my perusal by the learned APP. 6. The petitioner and other accused are alleged to have abetted the commission of suicide by one Shivaji Gade. 7. 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. 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 24th February 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 Gadc was abetted by the petitioner and other accused. 9. It is not clear, in the first plac, 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. 10. 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 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 under section 306 of the IPC. 11. 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 under section 306 of the IPC. 11. The case of the prosecution at best is as follows :- 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 Gadecommitted 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. 12. 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 trauma to him. 13. 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 Chaptcr V of the IPC. Section 107 of the IPC reads as under: "107. 14. For answering this question, the legal concept of 'abetment' needs to be fully comprehended. The law relating to it is found in Chaptcr 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. S, 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, S 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.) 16. 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. 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 'abetment by instigation', there must be a direct incitement to do the culpable act. 17. 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. 18. In Criminal Writ Petition No.1131 of 2011 (decided on 26th Apri12012) 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) (iv) Cyriac s/o Devassia & Anr Vs. SubInspector of Police, Kaduthuruthy & Anr. (2005 Criminal Law Journal 4322 : [2006 ALL MR (Cri) JOURNAL 27] (v) Ramesh Kumar Vs. State of Chattisgarh (2001 Criminal Law Journal 4724) (vi) Madan Mohan Singh Vs. State of Gujarat (2010) 8 Supreme Court Cases 628 : [2010 ALL MR (Cri) 3245 (S.C.)] 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 certain-or at least quite likely-to 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 certain-or at least quite likely-to 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 suicide, it was held that it would not amount to instigation and that consequently, there would be no offence of abetment of suicide. 19. 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 am on the new year night, and that he was drunk at that time, appears to be supported by the material in the charge-sheet. The act of the deceased in going to the house of a woman who was alone in the house at that time in the mid-night, 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. 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 mid-night, 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 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. 25. The learned Addl. 24. There must be some indication of the requisite mens rea on their part before they can be successfully prosecuted. 25. The learned Addl. Sessions Judge did not consider 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 punishment inflicted upon him, whether that would amount 'to instigating him to commit suicide'. 26. This was a case where the petitioner was entitled to be discharged. 27. Petition is allowed. 28. The petitioner stands discharged. 29. Rule IS made absolute accordingly. Petition allowed.