‘Words not always used with criminal intent’ Bombay HC in 498a 306 aquittal

Criminal Appeal No. 275 Of 1996 vs Unknown on 17 February, 2012

Bench: A.P. Bhangale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 275 of 1996

Applicant : State of Maharashtra

versus

Respondent : Vasant Kumar s/o Dindayal Chudiwale, aged about 35 years, resident of Hospital

Road, Wardha

Mr S. S. Doifode. Additional Public Prosecutor for appellant-State Mr Ashish Chawre, Advocate for respondent

---------

Criminal Revision Application No. 114 of 1996

Applicant : Madanchand s/o Saheblal Kashyap, aged about 70 years, resident of Central

Avenue, Bhawsar Chowk, Nagpur

versus

Respondents : 1) The State of Maharashtra 2) Vasant Kumar s/o Dindayal Chudiwale,

aged about 35 years, resident of Hospital

Road, Wardha

2

Mr Sharma, Adv h/f Mr R. M. Daga, Advocate for applicant Mr S. Doifode, Additional Public Prosecutor for State Mr Ashish Chawre, Advocate for respondent no. 2

Coram : A. P. Bhangale, J

Dated : 17th February 2012

Oral Judgment

1. By Criminal Appeal No. 275 of 1996 and Criminal Revision Application No. 114 of 1996, acquittal of original accused Vasant Kumar Chudiwale is under challenge.

2. Accused Vasant Kumar had married with Maya on 27.6.1985 at Wardha. After marriage the couple resided at Wardha and Amravati where accused was working. Out of wedlock, accused and Maya were begotten with girl child. After two years of marriage, it is alleged that accused started ill-treating Maya on the ground that she had illicit relations with Rakeshkumar (PW 8), husband of her sister Meena. He insisted upon Meena to admit to the position and he will forgive her. Maya declined to admit such position which was non- existent. They came to Nagpur some time on 19.7.1987 and stayed at the house of Madanchand, uncle of deceased Maya. Looking at the tense situation, Madanchand called father and brother of Maya and a meeting took place in which it was decided to obtain clarification from Rakeshkumar. Therefore, brother of Maya by name Ramkumar went to Raipur, however, in the mean-while on 22.7.1987 Maya committed suicide by pouring kerosene on her person and 3

setting herself on fire in her uncle Madanchand's house. Special Executive Magistrate recorded the dying declaration of Maya at the Government Hospital. It is alleged that Maya blamed accused for her suicide. Maya died on 25.7.1987. Brother of Maya lodged report at Police Station, Tahsil, Nagpur. After investigation, accused was charge-sheeted for the offences punishable under Sections 498A and 306 of the Indian Penal Code.

3. Learned Assistant Sessions Judge, Nagpur convicted the accused on both the counts and sentenced him to suffer rigorous imprisonment for one year each for the offences punishable under Sections 498A and 306 of the Indian Penal Code and directed him to pay fine of Rs. 500/- on each count.

4. Accused preferred appeal against the order of conviction and sentence and learned Extra Joint District Judge and Additional Sessions Judge, Nagpur while allowing the appeal, set aside the same. Aggrieved by the order of acquittal, the State has preferred appeal while uncle of deceased Maya by name Madanchand has preferred revision.

5. Learned Additional Public Prosecutor appearing for State and learned counsel appearing for revision-applicant tried to assail the judgment of acquittal by pointing dying declaration and they contend that Maya clearly and in specific words stated that her husband (accused) always used to say that she had illicit relations with her Jijaji (P. W. 8 Rakeshkumar) which she could not tolerate and that was the reason why she poured kerosene on her person and set herself on fire. Learned counsel further contend that Maya also blamed Rakeshkumar because of whose version, her husband suspected her chastity.

6. It is not in dispute that main plank of the prosecution case is the 4

said Dying Declaration (exhibit 35). Said Dying Declaration was recorded by the Special executive Magistrate and it bears thumb impression of Maya. It was recorded in Hindi language. She disclosed her name as Maya Chudiwale d/o Kewalchand Kashyap and Vasant Chudiwale as husband's name and stated that she was residing at Wardha with joint family consisting of mother-in-law, brother- in-law, wife of brother-in-law. When questioned about how she was burnt, she disclosed thus :

Then she was asked about the cause, she stated thus : Reading the above dying declaration as it is, would at the most indicate intolerant nature of deceased as a result of which she decided to end her life by pouring kerosene upon her own body and igniting it. The reason stated was that accused was suspecting because of some statements made by Rakeshkumar (who is not acused) that he had illicit relation with Maya. In order to constitute 5

the offence under Section 306 of the Indian Penal Code, it is necessary that there must be some evidence that the accused has abetted the deceased to commit suicide. It is necessary that accused must have instigated the person who has committed suicide or intentionally aided by any act or illegal omission causing the doing of that thing. The Apex Court in Ramesh Kumar vs. State of Chhatisgarh reported in (2001) 9 SCC 618 has held as under : "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 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 a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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 6

offence of suicide should be found guilty."

7. Thus, there should be positive act on the part of the accused necessary to spell mens rea. It is settled legal position that "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as "to go and die", cannot be taken to be uttered with requisite mens rea. Section 306 of the Indian Penal Code requires abetment as an essential ingredient which is defined under Section 107 of the Penal Code which lays down that "a person abets the doing of a thing who, 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, is said to have committed the abetment.

8. Bearing the above principles in mind, in the present case, the dying declaration in question does not spell out offence punishable under Section 306 as also under Section 498A of the Indian Penal Code. Considering the evidence led before the trial Court, in my opinion, the lower Appellate Court was right in reaching to a conclusion of acquittal and to set aside the judgment and order passed by the trial Court for want of essential ingredients to make out offences punishable under Section 306 and 498A of the Indian Penal Code. I do not find any valid ground or reason to interfere with the impugned judgment and order. 7

9. In the result, both the criminal appeal as well as criminal revision application fail and are dismissed.

A. P. BHANGALE, J

joshi

http://www.indiankanoon.org/doc/103794258/

Throw out baseless allegations in abetment to suicide cases: Supreme Court

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                                                       "Reportable"

               IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 1291 OF 2008

Madan Mohan Singh                                  ... Appellant

                              Versus

State of Gujarat & Anr.                            ... Respondents

                               WITH

                    CRLMP NO. 12749 OF 2008

                          JUDGMENT

V.S. SIRPURKAR, J.

1.   The accused who faces prosecution for offences under Section

306 and 294(b) of the Indian Penal Code (IPC) comes up before us

being aggrieved by the High Court judgment by which his petition

under Section 482 Cr.P.C. was dismissed.        In that petition the

accused/appellant had challenged the First Information Report (FIR)

registered as C.R. No. 166 of 2008 at Naranpura Police Station.
                                   2

2.    The said FIR is a long document which has been filed by one

Harshida Ben, widow of Deepakbhai Krishnalal Joshi. It is apparent

from the said report that she was married to Deepakbhai Krishnalal

Joshi serving in Ahmedabad Bharat Sanchar Nigam Ltd. as a driver

in the Microwave Project Department. He had undergone a heart

bypass surgery in the year 2002 and he was asked by the doctor to

avoid lifting heavy weights. She further stated that the appellant,

Madan Mohan Singh was working as a D.E.T. and her husband who

was driving a Tata Sumo car was working under Madan Mohan Singh

(accused herein). She then complained that Madan Mohan Singh

used to tell his private errands to her husband and was harassing

him. Though Madan Mohan Singh was transferred, yet he kept on

continuously using her husband. In the year 2007, Madam Mohan

Singh came back on transfer in the Microwave Project as D.E.T. It is

alleged that on the day when Madan Mohan Singh joined, he told her

husband to keep the keys of the vehicle on the table.          However,

according to her, her husband did not listen to that and took back the

key on account of which Madan Mohan Singh had become angry and

had threatened her husband of suspending him. He also rebuked her

husband that if he did not listen to him, he would create difficulties for
                                    3

her husband. Madan Mohan Singh said to her husband as how he is

still alive inspite of the insults. It is then contended that on 21.2.2008,

her husband left at 10'O Clock as per rules with tiffin but did not

return back in the evening and, therefore, his search was taken by his

son Jatin from his colleagues like Raji Saheb and his absence was

reported to the police on 22.2.2008 and 23.2.2008. Ultimately, she

came to know that her husband's body was lying in the dead

condition in the vehicle No. GJ 1 G 3472 at Kiran Park opposite

Gayatri Hospital, New Vadaj.       She also suggested further that a

telephone call had come from Gujarat High Court informing her that

there was a Xerox copy of the suicide note. Lastly, it is stated that

during the period between 2003 to 21.2.2008 the Head of the

department D.E.T. Project was entrusting his house work to her

husband but her husband had not done the work entrusted to him

and, therefore, he had bias against her husband and insulted him in

front of the staff several times and because of this her husband got

depressed and committed suicide.

3.    This First Information Report was filed and registered on

17.3.2008 i.e. after the 24 days of the death of her husband. It is this

report which is challenged suggesting that even if the whole report is
                                  4

accepted as it is, it did not disclose any offence much less the

offences under Sections 306 and 294, IPC. Since, the Gujarat High

Court did not agree and dismissed the petition; the appellant is before

us now.

4.   Shri K.T.S. Tulsi, learned Senior Advocate took us through the

FIR in which there is reference to a suicide note allegedly written by

the deceased, a Xerox copy of which was produced by the

complainant. The copy of that suicide note was filed before us. It

seems to be a letter dated 4.2.2008 written to the Chief General

Manager, Telecom Project.      It is a huge complaint in which the

incident dated 15.10.2007 was mentioned when allegedly the

appellant asked the driver to keep the keys of the vehicle on the table

and not to take away them. There is also a complaint against the

working style of the Madan Mohan Singh by the driver. There is one

significant sentence I was put under mental tension by M.M. Singh.

Without any concrete proof and evidence I was put under insulting

position due to which I began to feel resentment and insult and I

came under depression.
                                  5

5.   The further complaint in that so-called suicide note appears to

be that the driver was not given a fixed vehicle though all the drivers

were given fixed vehicles to drive. There is also a complaint against

one Raghunathan suggesting that he misled the DGM and had given

him a very bad vehicle to drive. By way of example, it was pointed

out that the keys of the vehicle were taken in the absence of

Incharge, M.K. Sovangya without giving any reasons verbally. Then

he was not given any charge of the vehicle and running log book.

Thirdly, he was sent the transfer order by post. The attendance of

the office staff was not maintained and he was transferred and the

vehicle was given to a regular labour.     There is also a complaint

about the salary of 15 days which was deducted by Madan Mohan

Singh.   A fair inquiry was sought for by the said driver. It was

suggested that his retirement date was 25.12.2012 and salary should

be recovered from Madan Mohan Singh as he had harassed him

without giving any concrete reason.      It is then suggested in the

followings words:

          I am going to commit suicide due to his functioning
          style. Alone M.M. Singh, D.E.T. Microwave Project is
          responsible for my death. I pray humbly to the
          officers of the department that you should not
          cooperate as human being to defend M.M. Singh.
          M.M. Singh has acted in breach of discipline
                                  6

          disregarding the norms of discipline.       I humbly
          request the Enquiry Officer that my wife and son may
          not be harassed. My life has been ruined by M.M.
          Singh."

6.   This huge note is addressed to inquiry officer, Chief General

Manager and also to the Chief Justice. The biggest complaint against

the accused is that he had changed the duty of this driver from one

car to another though no other driver was ever transferred. Again

and again, the deceased has insisted that the only person

responsible for his suicide was Madan Mohan Singh.

7.   We have gone through the suicide note though it is not yet on

record.   Shri Tulsi pointed out that even if this suicide note is

accepted as it is, along with the FIR, no ingredients of Sections 306

and 294 (b), IPC could be spelt out from the same. We have gone

through the whole FIR as well as the so-called suicide note which

seems to have been signed on 4.2.2008 wherein he had complained

about the stale incidents dated 15.10.2007 to 19.10.2007. It seems

that it is 17 days after that, that he was found dead 23.2.2008. It is

claimed by his wife Harshida Ben that she got a call from the Gujarat

High Court informing her that a suicide note was found and that she

should search for such note in her house subsequent to which she
                                   7

claimed to have found the suicide note bearing the signature of the

deceased, thus bringing the origin of alleged suicide note under the

cloud of suspicion.

8.    It is on this that Shri Tulsi contended that all this is absolutely

absurd. If a person writes a suicide note on 4.2.2008, he had no

business to send the suicide note to High Court and keep a copy

thereof in the house. Learned Senior Counsel said that even if all this

is accepted as it is, there is nothing to suggest that the appellant has

committed any offence or that any offence could be spelt out from the

said suicide note or the FIR much less offence under Sections 306

and 294, IPC. We are convinced that there is absolutely nothing in

this suicide note or the FIR which would even distantly be viewed as

an offence much less under Section 306, IPC. We could not find

anything in the FIR or in the so-called suicide note which could be

suggested as abetment to commit suicide. In such matters there

must be an allegation that the accused had instigated the deceased

to commit suicide or secondly, had engaged with some other person

in a conspiracy and lastly, that the accused had in any way aided any

act or illegal omission to bring about the suicide. In spite of our best

efforts and microscopic examination of the suicide note and the FIR,
                                   8

all that we find is that the suicide note is a rhetoric document in the

nature of a departmental complaint. It also suggests some mental

imbalance on the part of the deceased which he himself describes as

depression. In the so-called suicide note, it cannot be said that the

accused ever intended that the driver under him should commit

suicide or should end his life and did anything in that behalf. Even if it

is accepted that the accused changed the duty of the driver or that

the accused asked him not to take the keys of the car and to keep the

keys of the car in the office itself, it does not mean that the accused

intended or knew that the driver should commit suicide because of

this. In order to bring out an offence under Section 306, IPC specific

abetment as contemplated by Section 107, IPC on the part of the

accused with an intention to bring out the suicide of the concerned

person as a result of that abetment is required. The intention of the

accused to aid or to instigate or to abet the deceased to commit

suicide is a must for this particular offence under Section 306, IPC.

We are of the clear opinion that there is no question of there being

any material for offence under Section 306, IPC either in the FIR or in

the so-called suicide note.
                                   9

9.    It is absurd to even think that a superior officer like the

appellant would intend to bring about suicide of his driver and,

therefore, abet the offence. In fact, there is no nexus between the so

called suicide (if at all it is one for which also there is no material on

record) and any of the alleged acts on the part of the appellant.

There is no proximity either. In the prosecution under Section 306,

IPC, much more material is required.          The Courts have to be

extremely careful as the main person is not available for cross-

examination by the appellant/accused.       Unless, therefore, there is

specific allegation and material of definite nature (not imaginary or

inferential one), it would be hazardous to ask the appellant/accused

to face the trial. A criminal trial is not exactly a pleasant experience.

The person like the appellant in present case who is serving in a

responsible post would certainly suffer great prejudice, were he to

face prosecution on absurd allegations of irrelevant nature. In the

similar circumstances, as reported in Netai Dutta Vs. State of W.B.

[2005 (2) SCC 659], this Court had quashed the proceedings initiated

against the accused.

10.   As regards the suicide note, which is a document of about 15

pages, all that we can say is that it is an anguish expressed by the
                                   10

driver who felt that his boss (the accused) had wronged him. The

suicide note and the FIR do not impress us at all. They cannot be

depicted as expressing anything intentional on the part of the

accused that the deceased might commit suicide. If the prosecutions

are allowed to continue on such basis, it will be difficult for every

superior officer even to work.

11.   It was tried to be contended by the learned counsel appearing

on behalf of the complainant that at this stage, we should not go into

the merits of the FIR or the said suicide note. It is trite law now that

where there is some material alleged in the FIR, then such FIR and

the ensuing proceedings should not be quashed under Section 482

Cr.P.C. It is for this reason that we very closely examined the FIR to

see whether it amounts to a proper complaint for the offence under

Sections 306 and 294(b) IPC.       Insofar as Section 294(b) IPC is

concerned, we could not find a single word in the FIR or even in the

so-called suicide note.   Insofar as Section 306 IPC is concerned,

even at the cost of repetition, we may say that merely because a

person had a grudge against his superior officer and committed

suicide on account of that grudge, even honestly feeling that he was

wronged, it would still not be a proper allegation for basing the charge
                                    11

under Section 306 IPC. It will still fall short of a proper allegation. It

would have to be objectively seen whether the allegations made

could reasonably be viewed as proper allegations against the

appellant/accused to the effect that he had intended or engineered

the suicide of the concerned person by his acts, words etc. When we

put the present FIR on this test, it falls short.     We have already

explained that the baseless and irrelevant allegations could not be

used as a basis for prosecution for a serious offence under Section

306 IPC. Similarly, we have already considered Section 294 (b) IPC

also.     We have not been able to find anything.           Under such

circumstances, where the FIR itself does not have any material or is

not capable of being viewed as having material for offence under

Sections 306 and 294(b) IPC, as per the law laid down by this Court

in State of Haryana & Ors. Vs. Bhajan Lal & Ors. [1992 Suppl. 1

SCC 335], it would be only proper to quash the FIR and the further

proceedings.

12.     For all these reasons, we are of the clear opinion that the High

Court erred in not quashing the proceedings. Allowing this appeal,

we set aside the order of the High Court and allowing the petition
                               12

under Section 482 Cr.P.C. filed by the appellant/accused, the

questioned proceedings are quashed.

                                        ............................J.
                                        [V.S. Sirpurkar]

                                        .............................J.
                                         [Cyriac Joseph]

New Delhi;
August 17, 2010