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2019 DIGILAW 448 (GUJ)

Harshadbhai Bhikhabhai Patel v. State of Gujarat

2019-04-22

A.P.THAKER

body2019
JUDGMENT : 1. By way of filing this petition, under Section 482 of the Code of Criminal Procedure, the petitioners have sought relief to quash the FIR, being C.R. No.I-11 of 2015 registered with Dabhoda Police Station, Gandhinagar for the alleged offences punishable under Sections 306, 506(2) read with Section 114 of the Indian Penal Code. 2. The brief facts leading to filing of the present petition are as under:- 2.1. That on 26.2.2015, informant Amrutlal Faldu- the respondent No.2 herein had filed an FIR against the present petitioners inter alia alleging that his son Dipen (since deceased) got married with the petitioner No.3 and from the wedlock, a child was born and thereafter, the relation between the husband and wife was not in a good condition and the petitioner No.3 used to insult deceased Dipen and all the accused persons have made unusual demands from the deceased. It is also alleged that due to mental torture from all the accused persons and instigation from the accused persons, deceased Dipen Patel had committed suicide. On that basis the FIR has been lodged. 3. According to the petitioners, there is absolutely not even a whisper as to how the petitioners are responsible for the death of the deceased; that they have been falsely implicated in the present case and that there is nothing in the alleged suicide note to implicate the present petitioners. 3.1. That the petitioner No.1 is father-in-law of the deceased and working as Central Government employee at Vyara and residing at Vyara, whereas the petitioner No.2 is wife of the petitioner No.1 and mother-in-law of the deceased and she is also residing at Vyara and both of them are not involved in the alleged offence as the petitioner No.3- daughter of them was residing with her husband at matrimonial home. 3.2. That before the incident, the petitioner No.3 due to physical and mental torture and for demand of dowry by the deceased and the in-laws including the present complainant, left the matrimonial home and came to stay with her parents at Vyara. Therefore, all the allegations leveled against the petitioner No.3 are so absurd and totally false and fabricated. 3.2. That before the incident, the petitioner No.3 due to physical and mental torture and for demand of dowry by the deceased and the in-laws including the present complainant, left the matrimonial home and came to stay with her parents at Vyara. Therefore, all the allegations leveled against the petitioner No.3 are so absurd and totally false and fabricated. It is also contended that the petitioner No.4 is brother-in-law of the deceased, who is staying at Vavol and he is falsely implicated, whereas the petitioner No.5 is the fiancée of the petitioner No.4, whereas the petitioner Nos.6 and 7 are maternal uncles-in-law and the petitioner No.8 is cousin-in-law of the deceased and they have been falsely implicated by the complainant due to ulterior motive with malafide intention. 3.3. It is also contended that the deceased was having bad habits of consuming liquor and the deceased had huge debts and he was doing business of real estate and had incurred heavy loss and many persons were demanding money from him and he was always in tension and used to quarrel with the petitioner No.3 and therefore, the petitioner No.3 had left the matrimonial home. 3.4. It is contended by them that the marriage between the deceased and the petitioner No.3 was love marriage and they were residing separately from the petitioners and after her marriage, the petitioner No.3 had no relation with the family members, including her parents. It is also contended that due to the love marriage, they did not agree with the love marriage. It is contended that therefore, all family members of the petitioner No.3 are falsely implicated in the alleged offence. It is also contended that even the complainant did not agree with the love marriage with the petitioner No.3 by his son as both the families belong to different communities. 3.5. It is contended that the deceased on 11.1.2015, had also tried to commit suicide due to huge debt, by consuming sleeping pills and the said information was registered with In-focity Police Station, Gandhinagar. The said fact has been mentioned in the order passed by the Session Court while enlarging the accused on anticipatory bail. It is contended that due to huge debt and bad habits of the deceased, he has committed suicide and therefore, the petitioners are falsely implicated. 3.6. The said fact has been mentioned in the order passed by the Session Court while enlarging the accused on anticipatory bail. It is contended that due to huge debt and bad habits of the deceased, he has committed suicide and therefore, the petitioners are falsely implicated. 3.6. While referring to the decisions of the Supreme Court and the High Court, relating to the ingredients of Section 306 of the Indian Penal Code, it is contended that in the alleged suicide note, there is no allegation of any kind of harassment by the present petitioners to the deceased and therefore, the proceedings against the petitioners would be nothing but a sheer abuse of process of law without any fruitful result. On all these grounds, they have prayed to allow the petition and to quash the impugned FIR and all other incidental and consequential proceedings. 4. It appears from the record that the original complainant has died during the pendency of the proceedings. 5. Wife of the original complainant- Sarojben Wd/o. Amrutlal Jamnadas Faldu (Patel) has tendered affidavit on behalf of the respondent No.2, which reads as under:- 1. I am the wife of the respondent no.2 who is original complainant and I am fully conversant with the facts and circumstances of the case and duly competent to file this affidavit. I say that I have gone through the memo of petition. 2. I say that my husband lodged the original complaint of FIR being C.R. No.I-11/2015 with Dabhoda Police Station, Gandhinagar for the offences punishable u/s. 306, 506(2) and 115 of IPC. Thereafter, the applicants filed the quashing petition before the Hon'ble Court where the Hon'ble granted the interim relief in favour of the applicants. During the pendency of this quashing petition my husband who is original complainant was died on dated 12.10.2016 at Bhayavadar, Rajkot. Annexed hereto and marked as ANNEXURE 'R-1' to this affidavit is the copy of the death certificate of the original complainant. 3. I say that during pendency of this quashing petition, an amicable settlement has been arrived at between me and the applicants- accused. I say that now, Thereafter, a meeting took place between the parties for resolving the disputes and grievances as a result of which the misconception and misunderstanding between us was cleared. 4. At the outset, I submit that I am filing this affidavit in support of the petition. I say that now, Thereafter, a meeting took place between the parties for resolving the disputes and grievances as a result of which the misconception and misunderstanding between us was cleared. 4. At the outset, I submit that I am filing this affidavit in support of the petition. I say and submit that after the registration of the aforesaid FIR, I have settled the dispute with the applicants with the intervention of the leaders, elders and front runners of out society and therefore, I have decided not to proceed with the present FIR/Complaint. 5. I further say that the dispute of this offence is of private nature and therefore, public at large is not affected by the offence, therefore, I voluntarily give my consent and without any force or coercion on me for the quashing of the aforesaid FIR/Complaint. 6. I say and submit that as I have already settled the dispute amicably with the help of other members of our locality, I do not wish to proceed with the criminal case and even thereafter, if the case is to proceed further the same would lead to shameful and embarrassing situation therefore, I would prefer not to step into witness box and to give evidence against the applicants, neither I wish that the precious time of the Hon'ble Court be wasted in a matter which has already been compromised and therefore, the impugned FIR may kindly be quashed on the ground of settlement arrived at between me and the applicants. 7. I say and submit that the FIR was filed by my husband therefore, I am filing this affidavit with my free will and consent and I would request that this application may kindly be allowed and the impugned FIR may be quashed and set aside on the ground of settlement. 8. That what is stated hereinabove is true and correct to the best of my knowledge and I believe the same to be true and I state the same on solemn oath. 6. In view of the affidavit filed by the wife of the original complainant, it was urged by learned advocates for the petitioners as well as the respondent No.2 to allow the petition and quash the FIR, which has been vehemently opposed by learned Additional Public Prosecutor Ms. 6. In view of the affidavit filed by the wife of the original complainant, it was urged by learned advocates for the petitioners as well as the respondent No.2 to allow the petition and quash the FIR, which has been vehemently opposed by learned Additional Public Prosecutor Ms. Moxa Thakkar for the State stating that the entire case is based on the suicide note of the deceased and there is ample evidence on record to connect the present accused with the alleged offence and therefore, this being a serious offence, though parties have settled the matter, the matter should not be allowed and it should be dismissed. Therefore, learned advocate for the petitioners and learned Additional Public Prosecutor Ms. Moxa Thakkar were heard on merits. 7. Learned counsel Mr. I.H. Syed appearing with learned advocate Mr. Ankit Pandya for the petitioners has vehemently submitted that no case under Section 306 of the Indian Penal Code is made out as there is no proximity between the commission of suicide and the alleged harassment by the present petitioners to the deceased. While referring to Section 107, which defines the term 'abetment' and relying upon various judgments, he has submitted that in the present case, all the ingredients of abetment are lacking and no offence under Section 306 is made out. He has also contended that the incident narrated in the FIR is regarding non-calling for lunch/dinner by the in-laws to the deceased, which had happened prior to 9 days of the commission of suicide and therefore, there cannot be any proximity between that fact and the commission of the suicide. He has also stated that the entire matter has been settled between the parties considering the welfare of the child. 7.1. Learned counsel Mr. Syed for the petitioners has also stated that the deceased had attempted to commit suicide on earlier occasion and at that time, it was clearly revealed that he had tried to commit suicide due to huge debts. He has also contended that the deceased was of the tendency to commit suicide and the present petitioners are not at all involved in the alleged offence and when there is a settlement between the parties, the Court should take lenient view in favour of the present petitioners by granting the prayers as sought for in the petition. He has also contended that the deceased was of the tendency to commit suicide and the present petitioners are not at all involved in the alleged offence and when there is a settlement between the parties, the Court should take lenient view in favour of the present petitioners by granting the prayers as sought for in the petition. According to him, the entire matter has been settled looking to the welfare of the child and the complainant side has no objection. While relying on the following decisions, learned counsel Mr. Syed has requested to allow the petition:- (1) In the case of M. Mohan Vs. State Represented by the Deputy Superintendent of Police reported in (2011)3 SCC 626 ; (2) In the case of Sanju Alias Sanjay Singh Sengar Vs. State of M.P. Reported in (2002)5 SCC 371 ; (3) In the case of Rajkumar Madhabhai Vegda & Another Vs. State of Gujarat and Another, judgment dated 27.8.2008 in Criminal Misc. Application No.2726 of 2008; (4) In the case of Anoop Akhil Mahato Vs. State of Gujarat, order dated 12.3.2018 in Criminal Misc. Application No.5456 of 2018; (5) In the case of Priyesh Bimalkant Chaudhary Vs. State of Gujarat, judgment dated 26.9.2018 in Criminal Misc. Application No.17837 of 2018; (6) In the case of I.K. Chaudhary & others Vs. The State of Gujarat and others reported in 2005(3) GLH 444 . 8. Per contra, learned Additional Public Prosecutor Ms. Moxa Thakkar has vehemently opposed the petition and has stated that there is a suicide note of the deceased, wherein specific allegations have been made against the present accused and the suicide note was sent to FSL from where, it is opined that the handwriting of the suicide note is of the deceased and therefore, this is the dying declaration of the deceased. She has also contended that considering the seriousness, which has been narrated in the suicide note, though the matter has been settled between the parties, the wife of the original complainant as the original complainant has died, the matter should be permitted to be continued and this application should be rejected. She has also contended that the decisions which are cited by learned advocate Mr. She has also contended that the decisions which are cited by learned advocate Mr. Syed are based on the factual aspects of the particular case and the law laid down by the Supreme Court regarding interpretation of Section 306 are based on the factual aspects of the particular case. She has also contended that the decisions of the Supreme Court have been passed not at the stage of quashing of the FIR but have been passed after conclusion of the trial and at appellate stage. Therefore, according to her submissions, though the principles are laid down therein, that principles cannot be applied in the facts of the present case at this stage. She has prayed to reject the petition. She has relied upon the decision of the Supreme Court in the case of Munshiram Vs. State of Rajasthan and Another reported in (2018)5 SCC 678 . 9. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinies the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 10. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 11. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 12. In the case of Sanju Alias Sanjay Singh Sengar (supra), the Supreme Court has held that 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. 12.1. In para 6 thereof, the Supreme Court has held and observed as under:- 6. Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he firstly, 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. 12.2. Considering the factual matrix of that case, the Supreme Court has ultimately allowed the petition of the accused for quashing of the FIR filed under Section 306 of the Indian Penal Code. 13. In the case of M. Mohan Vs. State (supra), considering the factual matrix of the case, it was observed therein that there is also no proximate link between the incident of 14.1.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18.1.2005. 13. In the case of M. Mohan Vs. State (supra), considering the factual matrix of the case, it was observed therein that there is also no proximate link between the incident of 14.1.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18.1.2005. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. In a joint family, instances of this kind are not very uncommon. 13.1. It is also observed therein that 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. 13.2. The Apex Court in the aforesaid case in para 36 to 39 has observed as under:- 36. We would like to deal with the concept of 'abetment'. Section 306 of the Code deals with 'abetment of suicide' which reads as under: "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 extent to ten years, and shall also be liable to fine." 37. The word 'suicide' in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 38. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 of I.P.C. 39. 'Abetment of a thing' has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under: "107. 38. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 of I.P.C. 39. 'Abetment of a thing' has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which 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 or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing. Explanation 2 which has been inserted along with section 107 reads as under: "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 facilitate the commission thereof, is said to aid the doing of that act." 13.3. In the aforesaid decision, the Supreme Court has also referred to its earlier decision in the case of Ramesh Kumar Vs. State of Chhatishgarh reported in (2001)9 SCC 618 , especially 20, which reads as under:- 20. 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 incite the consequence must be capable of being spelt out. the present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.". 14. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.". 14. In the aforesaid decision, in para 44, the Supreme Court has observed that 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. 15. Other judgments of this Court which have been relied by learned counsel Mr. Syed are on the same line. 16. In the case of Munshiram Vs. State of Rajasthan (supra), which has been relied by learned Additional Public Prosecutor Ms. Moxa Thakkar for the State, it is found that in that case, the High Court has quashed the complaint which was filed for various offences, one of which under Section 306 of IPC. In that case, the prosecution has relied on the FSL report to the effect that the suicide note was in the handwriting of the deceased and considering the factual matrix of the case, it was held by the Supreme Court that the High Court was wrong in setting aside the FIR and therefore, the decision of the High Court was quashed and the investigating authority was permitted to complete the investigation. 17. Considering the legal preposition as to abetment under Section 107 read with Section 306 and on perusal of the material placed with the present matter, it transpires that the entire case of the prosecution is based on the suicide note of the deceased. The contents of the suicide note is to the following effect:- “I, i.e. Dipen, in full conscious, declare that due to my family, i.e. Nikita Patel and her father Shri Harshadbhai Patel and Gauriben Patel, who is my mother-in-law and brother-in-law Dipakbhai Patel and Manishbhai Patel and all their sons are frequently giving mental torture to me and therefore, I cannot give proper answer to my community and due to their torture, I end my life and my father-in-law and brother-in-law, i.e. Harshadbhai Patel and Dhavalbhai Patel, have given me revolver and have instigated me and gave pressure to end my life within 2 to 3 days. But, I have persuaded them with my power of understanding but they are also conspiring to give same treatment to my son of 5 months and due to that, I am not able to sustain those pressure and due to that I am ending my life and I pray to God to save my son. I have been unable to perform my responsibility which has been given to me and for that pardon me. It is my last wish that all these persons may not be pardoned who have spoiled my life as well as progress of my family. Father, take justice for this.” 18. In second page, he has also given the names of Gauriben Harshadbhai (mother-in-law), Harshadbhai Patel (father-in-law), Dhavalbhai Patel (brother-in-law), Bhargaviben Mukeshbhai Patel (fiancee of Dhavalbhai), Dipakbhai Patel (maternal uncle-in-law) Manishbhai Patel (maternal uncle-in-law), Miteshbhai Patel (son of Dipakbhai) (maternal uncle-in-law). He has also stated that all are responsible for giving mental torture and if there is God, he will not spare them. …....Hey Ram. 19. This suicide note has been sent by the prosecution to the FSL, which has opined that the handwriting and signature thereof is of the same person. Thus, the suicide note, which is the basis of filing of the FIR is nothing but a dying declaration of the deceased. It reveals from the suicide note that the accused have mentally harassed the deceased in such a manner that he was compelled to end his life though he had a son of 5 months age. It also reveals from the suicide note that revolver has been given by the accused and they have instigated him to commit suicide within 2 to 3 days. 20. On perusal of the suicide note, it clearly transpires that there is a prima facie case of instigation for commission of the suicide by the deceased. Therefore, though there is the affidavit filed by the mother of the deceased of compromise between the parties, but the entire case is based on the suicide note of the deceased, which, as stated above, is the dying declaration of the deceased. It also transpires from the FIR that the FIR is based on the suicide note itself. Therefore, considering the factual matrix of the present case, there is a nexus of commission of suicide and abetment thereof by the present accused. 21. It also transpires from the FIR that the FIR is based on the suicide note itself. Therefore, considering the factual matrix of the present case, there is a nexus of commission of suicide and abetment thereof by the present accused. 21. The version of the petitioners that earlier, the deceased had attempted to commit suicide for his financial condition is only a circumstance which can be used by the accused during trial as a defence. Merely the deceased had earlier attempted to commit suicide is not a circumstance to disbelieve the present suicide note written by the deceased in his own handwriting. Therefore, considering the facts and circumstances of the present case, inherent power under Section 482 of the Code of Criminal Procedure is not to be exercised in the present case. 22. Resultantly, the present petition is devoid of merits and the same stands dismissed. Rule is discharged. Interim relief stands vacated forthwith.