“27. 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 words "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
suitability pattern is different from the other. Each person has
his own idea of self esteem and self respect. Therefore, it is
impossible to lay down any straitjacket formula in dealing with
such cases. Each case has to be decided on the basis of its own
facts and circumstances.
28. 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. The
intention of the legislature and the ratio of the cases decided by
this Court is 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 that act must
have been intended to push the deceased into such a position
that he committed suicide.
17. The Supreme Court in the case of Gangula Mohan Reddy v. State
of A.P. reported in 2010 All MR (Cri) 615 : AIR 2010 SC 327 held that mens
rea to commit the offence, must be present for proving the offence of abetment
of suicide. The Supreme Court held as under:
“20. Abetment involves a mental process of instigation 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.
The Supreme Court also held that it is not possible to lay down any
formula in dealing with such cases.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2622 OF 2012
Raviraj Ramchandra Deshpande ...Petitioner
Versus
The State of Maharashtra & Anr. ...Respondents
CORAM:- REVATI MOHITE DERE, J.
DATED :- JUNE 18, 2014
Citation;2016 ALLMR(CRI)1420
1. Vide order dated 11th April, 2014, the intervention application
was allowed. Hence, leave to amend to implead the complainant as
respondent No.2. Amendment be carried out forthwith.
2. Rule. Rule made returnable with the consent of the parties and
taken up for final disposal forthwith. Respondents waives service of notice
through their respective Counsel.
3. Heard learned Counsel for the parties.
4. According to the prosecution, Tushar (deceased) had
committed suicide on the railway track at Pune on 15th May, 2010. The
Railway Police found a visiting card in the pocket of the deceased and a
suicide note. Pursuant to the same, the Railway Police called the
complainant i.e. Yashwant Dhake, the father of the deceased and informed
him about the aforesaid fact. The complainant took possession of Tushar’s
body and performed the funeral. Thereafter, the police handed over the
keys of the scooty belonging to the deceased along with Tushar's suicide
note, in which it was written that the vehicle was kept at Sangeetam Office,
Wakad. The complainant and his nephew Rakesh are stated to have taken
search of the vehicle, but failed to find the said vehicle. After about one
month, the complainant is stated to have found the scooty Vehicle at
Sangeetam Office, Wakad, which was taken by him home. According to
the complainant, on 19th July, 2010 i.e. after two months of the incident,
when he was checking the vehicle for the scooty papers, he found one chit
in the dicky of the vehicle. In the said chit, amongst other things, Tushar
had written that he was committing suicide due to the harassment of the
present petitioner, Sumit Dasani and others. After reading the said suicide
note written by Tushar, Yashwant Dhake went to the Railway Police Station
and lodged a complaint as against Raviraj Ramchandra Deshpande i.e.
present petitioner, Sumit Dasani and others. Pursuant to the said FIR, C.R.
No. 140/2010 came to be registered as against the present petitioner, Sumit
Dasani and others with the Sanghvi Police Station, alleging offences
punishable under Section 306 r/w Section 34 of the Indian Penal Code
(`IPC'). After investigation, charge-sheet came to be filed as against the
present petitioner and Sumit Dasani and the case being sessions triable,
came to be committed to the Court of Sessions for trial. The petitioner
preferred an application seeking his discharge from the said case.
However, the Trial Court was pleased to reject the said application seeking
discharge vide order dated 13th April, 2012. Hence, this petition.
5. Learned Counsel for the petitioner contended that even if the
prosecution case is taken as it is, no offence under Section 306 of the IPC is
disclosed. He submitted that there is no sufficient ground for proceeding as
against the petitioner for the alleged offence, in the absence of any material
to show his complicity in the said offence. He submitted that both the
suicide notes, although name the petitioner, as being one of the persons
who cheated him, in one of the suicide note, the deceased has disclosed not
only the name of the present petitioner but also of Pappu Sardar, Patali
Yantri, Prof. Pawar, Zanzurne, Mangoli, Rajan Shah and has stated that
there were 13 others who were responsible for his death. He stated that on
the contrary, deceased Tushar had suffered huge losses and a perusal of the
statement of the witnesses would also reveal that the deceased was in huge
debt, which was in lakhs, as a result of which, he committed suicide. He
submitted that there was no abetment whatsoever, as contemplated under
Section 107 of the IPC, so as to make the petitioner liable for the offence
punishable under Section 306 of the IPC.
6. On the other hand, Mr. Sachin Punde, learned Counsel for the
respondent No.2/original complainant contended that a perusal of the
statement of the first informant, the second suicides note and the statements
of Rajan Shah, Appasaheb Zanjurne and Abhay Gondhalekar would reveal
that the petitioner had cheated Tushar, and as a result of which, Tushar
committed suicide. He submitted that considering the suicide notes and the
statement of the witnesses, the complicity of the petitioner was clearly
evident and as such, there was sufficient material for proceeding as against
the petitioner for the offence for which he has been charged. The learned
A.P.P. supported the submissions advanced by Mr. Punde.
7. Perused the charge-sheet and the impugned order.
8. At the outset, it may be noted, that it is not disputed that the
suicide notes were written by the deceased Tushar and that the opinion of
the handwriting expert also confirms the same. In the first suicide note,
written by deceased Tushar to his father, which was found on his person,
the deceased has stated that it is difficult for him to commit suicide, as he
would be leaving all of them and that too because of his own foolishness;
and that he is finding it difficult to take his life though he was attempting
to commit suicide from the previous night. The deceased has further
written that he had wasted the hard earned money of his father and that
everyone has been asking him to take his father’s help again, and that, why
couldn't other people help him; that Raviraj (present petitioner) had cheated
him and that everybody agrees that Raviraj has cheated him, but why
nobody questioned him and that Sumit had also ditched him; that as a result
of this, there was sadness, and that now there was no turning back. At the
end, he has stated that he should be forgiven.
9. The second letter written by Tushar addressed to his parents,
found after two months by his father in the scooty, was handed over to the
police on 19th July, 2010. The said letter was addressed to his father i.e. the
complainant i.e. the father and the mother. He has written in the said
letter, that he was ashamed and guilty that he had made several mistakes
and that he was not able to correct the said mistakes; and also that in his
business, he has suffered huge losses which could not be recovered and as a
result, his parents had suffered tremendous mental stress. He has further
written that he had never imagined that at such a young age, he would
make such a huge mistake, however, in order to earn money and as the
share market index had come down and as a result of friends’ influence, he
had suffered huge losses in the business and the business had to be shut
down completely. He has further written that initially on less interest,
money was given to him, however, later, everybody started demanding
10% interest and that for the last one month, all the lenders had started
troubling his father. He has written that at times, they had even threatened
to kill him and his father. He has written that although mistakes were made
by him, his father was being put to mental stress and therefore the thought
of putting an end to the said problem was continuously haunting him. He
has expressed his apprehension that he was not sure whether he would have
the strength to carry out what he had decided. He has further written that
he was writing this last letter to his parents and that the thought behind
ending his life was to put an end to his father's problems and the demand
from all the lenders, so that his parents could in future lead a hassle free
life. He has written that he had no option, but to leave home and that they
should not make any inquiry with regard to the same, and in fact they
should give blessings to him; and that they should not try and search for
him. At the end of the said letter, he has stated that if something untoward
happens to him, the persons who would be primarily responsible would be
Pappu Sardar, Raviraj Deshpande (petitioner), Sumit Dasani and that the
said persons were traitors. He has further stated that even Prof. Pawar,
Zanzurde, Mangoli, Rajan Shah and 13 others had cheated him and were
taking 10% interest from him, as a result of which, his business had to be
closed and there was no money left in the business, and in the process, he
had caused a loss of 20 to 25 lakhs to the family members.
10. A perusal of the statement of Yashwant Dhake i.e. the father of
the deceased Tushar, dated 19th July, 2010 shows, that his son Tushar had
committed suicide because of the present petitioner, Sumit Dasani and
several others, as was reflected in the suicide note.
11. A perusal of Rajan Shah's statement shows that the deceased
Tushar and Raviraj i.e. the petitioner, were good friends and that Rajan
Shah had also invested money in share trading with the deceased and the
present petitioner and that while doing share trading with Tushar and
Raviraj, he has stated that there were some differences between the two.
He has stated that the relations between Tushar and Raviraj (petitioner) did
not improve and that both of them had initiated legal action against each
other. He has stated that the cheque given by Tushar to him had been
dishonoured, but as Tushar had assured to pay, he did not deposit the
cheque again.
12. The evidence of the other two witnesses, Abhay Gondhalekar
and Appasaheb Zanzurne is similar to the evidence of Rajan Shah. It
appears that all the three witnesses had transactions with the deceased
Tushar and that there was some conflict with regard to the money
exchanged between them.
13. Considering the evidence as stated aforesaid, the question that
would arise for consideration, is whether there are sufficient grounds for
proceeding as against the present petitioner for the alleged offence
punishable under Section 306 of the IPC. Section 306 is reproduced
hereinunder :
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.
14. In the facts, in order to convict a person for the offence
punishable under Section 306, what is required is that there should be
`abetment' as defined under Section 107 of the IPC. Section 107 of the IPC
is reproduced hereinunder :
“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 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 willful misrepresentation, or
by willful 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 of that
thing.
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. The manner and the reason for which Tushar committed
suicide is no doubt extremely unfortunate. However, in the present case,
from a perusal of the suicide notes, the statement of the complainant and
the statements of the witnesses, in particular, that of the aforesaid three
witnesses, it cannot be said that the petitioner had in any way abetted the
commission of Tushar's suicide. For proceeding against the petitioner, it is
incumbent for the prosecution to atleast, prima facie, show that the
petitioner had instigated or intentionally aided or done any act
contemplated under Section 107 of the IPC, as a result of which, the
deceased committed suicide. There has to be some positive act.
Admittedly, there is none. It appears that there were some monetary
transactions between the petitioner and the deceased and that the parties
had initiated legal proceedings against each other. In fact, even a perusal of
the suicide notes, does not show that the petitioner either instigated or aided
the commission of suicide of Tushar. The deceased had suffered a financial
loss running in lakhs. It appears from the suicide notes and the statements
of witnesses, that the deceased had taken money from several persons and
could not return the same and that he also had financial dealings with the
petitioner. In fact, in the second suicide note, the deceased has named as
many as 7 persons, including the petitioner and 13 others (unnamed),
whom he held responsible for his death, however, only the petitioner and
one Sumit Dasani have been charge-sheeted. The second suicide note
merely at the end states that these persons were primarily responsible for
his death, as they had cheated him. The said statement by itself, is not
sufficient to attract the provision of Section 306 of the IPC, as there is no
`abetment' as contemplated under Section 107 of the IPC,
16. In the case of S.S. Chheena v. Vijay Kumar Mahajan &
Anr., reported in 2010 All MR (Cri.) 3298 (SC), there was a dispute
between one Saurav Mahajan, who was a final year student of Law
Department and Harminder Singh, a fellow student of the same class with
regard to the theft of a mobile phone. This came to the notice of
M.D.Singh, the then Head of the Law Department who asked both the
students to submit their versions of the incident in writing. The deceased
and Harminder gave their versions and, thereafter, M.D.Singh forwarded
their versions to the University authorities for taking necessary action. An
inquiry was conducted on 13th October 2003 by the Security Officer of the
University Shri S.S.Chheena. During the course of inquiry, on 17th October
2003, Saurav Mahajan committed suicide by jumping in front of the train.
A suicide note was seized from the pocket of the deceased. On the
complaint of father of the deceased, an offence under section 306 of I.P.C.
was registered against Harminder Singh. During the course of trial,
S.S.Cheena was also impleaded as accused. Being aggrieved by the
framing of charge, S.S.Cheena approached the High Court. The High Court
refused to interfere. Being aggrieved, S.S.Cheena approached the Supreme
Court and the Apex Court was pleased to allow the petitioner and quash the
proceedings as against S.S. Cheena. The Apex Court observed thus:
“27. 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 words "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
suitability pattern is different from the other. Each person has
his own idea of self esteem and self respect. Therefore, it is
impossible to lay down any straitjacket formula in dealing with
such cases. Each case has to be decided on the basis of its own
facts and circumstances.
28. 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. The
intention of the legislature and the ratio of the cases decided by
this Court is 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 that act must
have been intended to push the deceased into such a position
that he committed suicide.
29. In the instant case, the deceased was undoubtedly
hypersensitive to ordinary petulance, discord and differences
which happen in our day-to-day life. Human sensitivity of each
individual differs from the other. Different people behave
differently in the same situation.
30. When we carefully scrutinize and critically examine the
facts of this case in the light of the settled legal position the
conclusion becomes obvious that no conviction can be legally
sustained without any credible evidence or material on record
against the appellant. The order of framing a charge under
section 306 IPC against the appellant is palpably erroneous and
unsustainable. It would be travesty of justice to compel the
appellant to face a criminal trial without any credible material
whatsoever. Consequently, the order of framing charge under
section 306 IPC against the appellant is quashed and all
proceedings pending against him are also set aside.”
(emphasis supplied)
17. The Supreme Court in the case of Gangula Mohan Reddy v. State
of A.P. reported in 2010 All MR (Cri) 615 : AIR 2010 SC 327 held that mens
rea to commit the offence, must be present for proving the offence of abetment
of suicide. The Supreme Court held as under:
“20. Abetment involves a mental process of instigation 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.
The Supreme Court also held that it is not possible to lay down any
formula in dealing with such cases.”
18. In the present case, for proceeding with the trial, as against the
petitioner, it is necessary for the prosecution to prima facie show, that the
petitioner had the requisite intent to aid/instigate/abet the deceased to
commit suicide. There is nothing in the entire charge-sheet to suggest the
same. Without there being any positive act on the part of the petitioner in
aiding/ instigating/abetting the deceased to commit suicide, the petitioner
cannot be compelled to face a trial. Mens rea, to commit the offence has to
be reflected in the act, which led the deceased to commit suicide. The
same is utterly wanting in the present case.
19. It appears from the first suicide note, that the deceased was
feeling guilty of the fact that he he has wasted his father's hard earned
money and did not want to seek his father's help again, despite people
asking him to take his help. It also appears that he felt that though the
petitioner had cheated him and everybody supported the said fact, nobody
was questioning the petitioner and hence, he was upset about the same. The
second suicide note also reiterates the said fact that he was ashamed and
guilty that he had made several mistakes and that he was not able to correct
the said mistakes, as a result of which, he had suffered huge losses which
could not be recovered. He was also upset over the fact that his parents had
suffered tremendous mental stress on account of the same. He has also
written that he had suffered huge losses on account of the share market
index which came crashing down and that everybody was demanding a
high interest from him and the lenders had also started troubling his father.
He has admitted that although mistakes were made by him, his father was
put under mental stress and therefore the thought of putting an end to his
life was continuously haunting him. In the letter, he has written that by
putting an end to his life, he would be putting an end to his father's
problems and the demand from all the lenders would come to an end and
that his parents would lead a hassle free life in future. He has written that
his parents should bless him; and that they should not try and look for him.
At the end of the said suicide note, he had written that if something
untoward happens to him, the persons who would be primarily responsible
would be Pappu Sardar, Raviraj Deshpande (petitioner), Sumit Dasani,
Prof. Pawar, Zanzurde, Mangoli, Rajan Shah and 13 others, who had
cheated him and were taking 10% interest from him, as a result of which,
he had to close down his business, thereby incurring a loss of 20 to 25
lakhs to his family members.
20. In the present case, a perusal of the suicide notes, F.I.R, and
statements of witnesses show that there is no reference of any specific act
or incident, which would reveal that the petitioner had committed any
willful act/omission or had intentionally aided or instigated the deceased in
committing the act of suicide. The essential ingredients necessary to
constitute an offence are wanting in the present case. In the circumstances,
continuation of the proceedings against the petitioner, would clearly
amount to abuse of the process of the law, in the absence of any material to
show the complicity of the petitioner and in what manner the petitioner
abetted the commission of suicide of the deceased. As no offence under
Section 306 is disclosed, and there being no ground for proceeding against
the petitioner, the criminal proceedings against him are liable to be
quashed.
21. Accordingly, I pass the following order :
(1) The impugned order dated 13th April, 2012 is quashed
and set-aside and consequently, the criminal proceedings
being Sessions Case No. 452/2011, pending on the file of the
Additional Sessions Judge, Pune arising out of C. R. No.
140/2010 registered at Sanghvi Police Station, Pune is
quashed and set-aside.
(2) Rule is made absolute on the above terms.
(3) Petition disposed of accordingly.
REVATI MOHITE DERE, J.
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