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2017 DIGILAW 1781 (BOM)

Mukesh v. State of Maharashtra

2017-08-31

ROHIT B.DEO

body2017
JUDGMENT : Rohit B. Deo, J. The appellant is aggrieved by judgment dated 26.8.2002 in Sessions Trial 563 of 2000 delivered by 7th Assistant Sessions Judge, Nagpur convicting the appellant (hereinafter referred to as the "accused") of offence punishable under section 306 of the Indian Penal Code (for short "IPC") and imposing sentence of rigorous imprisonment for ten years and payment of fine of Rs. 5,000/-. 2. I have heard Shri. D.V. Chavan, the learned counsel for the accused and Shri. A.V. Palshikar, the learned Additional Public Prosecutor for the State. Shri. D.V. Chavan would urge, that the judgment impugned is unsustainable on facts and in law and the reasoning of the learned Sessions Judge dangerously borders on perversity. Shri. Chavan would urge, that even if arguendo, the entire evidence on record is taken at face value, the prosecution has not established the necessary ingredients of section 306 of IPC. Per contra, the learned APP makes a strenuous effort to support the judgment impugned and contends that the prosecution has proved the charge under section 306 of IPC beyond any reasonable doubt. 3. Deceased Mamta was an employee of the accused who is a Medical Practitioner having dispensary and residence in the same premises. Mamta was in the employment of the accused since the age of 8 to 10 years and she resided at Umrer with her parents. 4. The incident occurred on 8.2.2000. Mamta returned home from the dispensary of the accused at 6.30 p.m. Mamta concededly suffered burn injuries at her residence. Mahesh and Kausalyabai, the brother and the mother of Mamta entered the house and witnessed Mamta burning. Mahesh and Kausalyabai extinguished the fire. The accused and Laxman the other brother of Mamta arrived at the residence. Accused arranged a vehicle and admitted Mamta at the private hospital of Dr. Sanjay Gadekar. Kausalyabai, Laxman and one Abhay Tiwari an employee of the accused accompanied the accused when Mamta was taken from Umrer to Nagpur for hospitalization. Mamta expired on 20.2.2000. 5. Police Station Umrer prepared a spot panchanama and seizure panchanama on 9.2.2000 and the Executive Magistrate recorded the dying declaration of Mamta on 9.2.2000. Mamta disclosed in the dying declaration that when she was lighting a lamp, the lamp flared up and flames came into contact with her clothes. Mamta expired on 20.2.2000. 5. Police Station Umrer prepared a spot panchanama and seizure panchanama on 9.2.2000 and the Executive Magistrate recorded the dying declaration of Mamta on 9.2.2000. Mamta disclosed in the dying declaration that when she was lighting a lamp, the lamp flared up and flames came into contact with her clothes. On 20.2.2000, Abhay Tiwari an employee of accused intimated the Police Station, Dhantoli, Nagpur about the death of Mamta. An accidental death inquiry under section 174 of the Criminal Procedure Code, 1973 was registered, an Inquest Panchanama was recorded and Post Mortem was conducted. Police Station Officer, Dhantoli Police Station, Nagpur conveyed the Accidental Death information to Umrer Police Station and an Accidental Death Inquiry was registered on 21.2.2000. 6. Police Station Officer, Umrer recorded the statements of the mother and brother of deceased Mamta on 7.4.2000. The investigation was then transferred to Police Sub Inspector (PSI) Manikrao Sangode who again recorded their statements on 30.5.2000. PSI Sangode also recorded the statement of Madhukar, Chandrakala, Laxman, Natthu Wasulkar and Chandrakala Wasulkar on 30.5.2000. Statement of some other witnesses including Dr. Sanjay Gadekar were also recorded during investigation. The prosecution case is that during the investigation, PSI Sangode learnt that accused had mercilessly beaten Mamta prior to the incident and PSI Sangode, therefore, lodged First Information Report (FIR) pursuant to which offence punishable under section 306 of IPC was registered by Police Station Umrer. I have noted that the dying declaration was recorded by the Executive Magistrate on 8.2.2000 (Exh. 26). This dying declaration in which the deceased Mamta categorically states that she suffered burn injuries due to an accident is discarded by the learned Sessions Judge on the ground that the Dr. Sanjay Gadekar did not certify that Mamta was conscious nor did the defence suggest to Dr. Sanjay Gadekar (PW4) that Mamta was conscious and in a fit condition to give her statement. Be it noted, that the dying declaration (Exh.26) is produced on record along with charge-sheet and in a sense the dying declaration is not disputed by the prosecution. The finding recorded by the learned Sessions Judge is that the dying declaration can not be relied upon since PW4 did not certify that Mamta was in a fit condition to give statement. Concededly, PW 4 - Dr. The finding recorded by the learned Sessions Judge is that the dying declaration can not be relied upon since PW4 did not certify that Mamta was in a fit condition to give statement. Concededly, PW 4 - Dr. Sanjay Gadekar, consented to recording the dying declaration and the Executive Magistrate has mentioned that the dying declaration was read over to deceased. I am not inclined to agree with the finding recorded by the learned Sessions Judge that the absence of certificate would ipso facto render the dying declaration unreliable. It must be borne in mind that the dying declaration Exh. 26 is produced by the prosecution and exhibited on admission. However, even de hors the dying declaration which absolves the accused of any culpability, I am convinced that the evidence on record is grossly insufficient to prove the charge much less prove the charge beyond reasonable doubt. 7. PW1 - Kausalyabai, who is the mother of the deceased Mamta, deposes that she was informed by the deceased that the accused beat Mamta mercilessly and struck her head on the wall since Mamta received a call. PW1 also mentions an incident which is unconnected with the incident of the accused beating Mamta. She states that since she conveyed to the accused that Mamta should not work at the dispensary, she was inflicted 2 to 3 slaps by the accused. In response to a suggestion from the Additional Public Prosecutor, PW 1 categorically denies that Mamta told her that accused had established physical relationship with Mamta one month prior to the incident. At this stage, PW1 was cross examined on behalf of the prosecution during which PW 1 answered every suggestion given by the Additional Public Prosecutor in the affirmative. In the cross examination on behalf of accused, PW 1 admits that she neither lodged a report against the accused nor did she disclose to any person the alleged conduct of the accused. PW2 - Chandrakalabai only states that she called the accused when Mamta suffered burn injuries and that accused and his wife came to the spot and made arrangement to hospitalize Mamta at the Nagpur hospital. Madhukar, the father of the deceased is examined as PW 3. PW2 - Chandrakalabai only states that she called the accused when Mamta suffered burn injuries and that accused and his wife came to the spot and made arrangement to hospitalize Mamta at the Nagpur hospital. Madhukar, the father of the deceased is examined as PW 3. All that Madhukar states is that on the day of incident Mamta received a phone call believing her uncle Kirti was on the line and held up the receiver and the accused beat Mamta. PW 4 is Dr. Sanjay Gadekar who treated Mamta. Dr. Sanjay Gadekar states that he was not present near Mamta when dying declaration was recorded. He however, admits that he consented to recording of the dying declaration by Executive Magistrate. PW 5 is Mahesh and his testimony is limited to stating that after noticing that Mamta was afire, PW5 and Kaushalyabai extinguished the fire. PW 6 - Abhay Tiwari is an employee of the accused and states that in his presence no incident involving Mamta occurred. PSI Manikrao Sangode is PW 7 and he proved the printed FIR Exh. 55. 8. The only credible and believable version of the prosecution is that an incident did take place at the dispensary which the accused may have treated as misconduct and the accused beat Mamta. The learned counsel for the accused would urge, and not without justification, that even if the dying declaration is kept out of consideration and arguendo it is assumed that the deceased committed suicide, the allegation that the accused beat Mamta, even if it is assumed that allegation is established, would not constitute an offence punishable under section 306 of IPC. 9. It would be apposite to refer to sections 306 and 107 of IPC, which read thus: "Sec.306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." "Sec.107. 9. It would be apposite to refer to sections 306 and 107 of IPC, which read thus: "Sec.306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." "Sec.107. Abetment of a thing - A person abets the doing of a thing, who - First - Instigate 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". It is well settled that mens rea is a sine qua non to bring home charge under section 306 of IPC and it is necessary for the prosecution to establish that the accused had the intention to aid or instigate or abet the deceased to commit suicide. Abetment is held to involve a mental process of instigating a person or intentionally aiding a person in doing of a thing. The conviction cannot be sustained unless a positive act on the part of the accused to instigate or aid in commission of suicide, is established. 10. Shri. D.V. Chavan has invited my attention to the judgment of the Hon'ble Supreme Court in M. Mohan v. State, 2011 CRI.L.J.1900, Chitresh Chopra v. State, AIR 2010 SC 1446 and to the Division Bench judgments of this Court in Binod s/o. Ratan Sarkar & Ors. v. The State of Maharashtra & Ors, 2014 ALL MR (Cri) 1216, Kavish s/o. Bharat Gahankari v. State of Maharashtra & Anr, 2017 ALL M.R.(Cri.) 1955, Manish Shashikant Bhalerao v. State of Maharashtra & Anr (Criminal Application (Apl) No. 323 of 2017, to substantiate the contention that even if entire evidence is taken at face value, the prosecution has failed to establish the mens rea or that the accused has done any active or direct act with the intention or the knowledge that Mamta will be compelled to take the extreme step. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) the Hon'ble Supreme Court observes thus : "14. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) the Hon'ble Supreme Court observes thus : "14. As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who "instigates" any person to do that thing. The word "instigate" is not defined in the IPC. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhatisgarh, 2001 AIR SCW 4282. Speaking for the three Judges Bench, R.C. Lahoti, J. (as His Lordship was then) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act. To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to inside the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation." "15. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action: provoke to action or reaction" (see : Concise Oxford English Dictionary), to keep irritating or annoying somebody until he reacts" (See : Oxford Advanced Learner's Dictionary - 7th Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular, direction especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar's case (2001 AIR SCW 4282) (supra), where the accused by his acts or by a continued course of conduct crates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (1) the accused kept on irrigating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation". 11. In M. Mohan v. State, the Hon'ble Supreme Court articulates the legal position thus:- "43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73 , this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears 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 of abetting the offence of suicide should be found guilty". "44. 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 word "instigation" and "goading". "44. 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 word "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 others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances". "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 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 this act must have been intended to push the deceased into such a position that he/she committed suicide". 12. It would be useful to refer to the judgment of the Hon'ble Supreme Court in Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh, AIR 2002 SC 1998 , the relevant observations of which read thus: "13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C., 1973 when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C., 1973 when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C., 1973 is annexed as annexure P3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. 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 derived 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". 13. If the evidence is appreciated on the anvil of the law articulated by the Hon'ble Supreme Court, I have no hesitation in recording a finding that the prosecution has not proved the offence under section 306 of IPC, much less beyond reasonable doubt. This fact had escaped notice of the courts below". 13. If the evidence is appreciated on the anvil of the law articulated by the Hon'ble Supreme Court, I have no hesitation in recording a finding that the prosecution has not proved the offence under section 306 of IPC, much less beyond reasonable doubt. The necessary ingredients have not been established. Even if it is assumed that the accused did beat Mamta, the necessary mens rea is lacking. Nothing is brought on record to suggest that the accused allegedly beat Mamta with the intention of pushing her to commit suicide or with the knowledge that the deceased will inevitably feel compelled to commit suicide. Before parting with the judgment, I must note with concern that learned Sessions Judge has resorted to surmises and conjunctures in observing that the accused must have admitted Mamta to a private hospital in order to conceal the injuries suffered by Mamta due to beating. The learned Sessions Judge observes that in a Medico Legal Case it is necessary to treat the victim at Government Hospital. The learned Sessions Judge is oblivious to the admitted factual position that immediately after the incident, the police were informed and indeed a spot panchanama was conducted on the next day of the incident. The accused ensured that Mamta is admitted to a private hospital in Nagpur and it is difficult to appreciate as to why the learned Sessions Judge could have faulted the accused for admitting Mamta to a private hospital. The observation that the accused admitted Mamta to a private hospital to conceal injuries received due to beating, is inexplicable. The learned Sessions Judge could have avoided indulging in surmises and conjunctures. The judgment impugned is manifestly erroneous and I set aside the judgment dated 26.8.2002 in Sessions Trial 563 of 2000 delivered by 7th Assistant Sessions Judge, Nagpur. 14. Appeal is allowed. 15. Bail Bond stand discharged. 16. Fine paid by the accused, if any, be refunded to accused. 17. Appeal is disposed of accordingly.