Jhantu Vs. State of West Bengal, reported in AIR 2010 SC 512, after
considering various earlier judgments on this issue, observed in para
15 & 16 as under:
“15. Thus, this Court has consistently taken the view
that before holding an accused guilty of an offence
under section 306, Indian Penal Code, the Court must
scrupulously examine the facts and circumstances of the
case and also assess the evidence adduced before it in
order to find out whether the cruelty and harassment
meted out to the victim had left the victim with no other
alternative but to put an end to her life. It is also to be
borne in mind that in cases of alleged abetment of
suicide there must be proof of direct or indirect acts of
incitement to the commission of suicide. Merely on the
allegation of harassment without their being any
positive action proximate to the time of occurrence on
the part of the accused which led or compelled the
person to commit suicide, conviction in terms of section
306, Indian Penal Code is not sustainable.”
16. In order to bring a case within the purview of
section 306 of Indian Penal Code there must be a case
of suicide and in the commission of the said offence, the
person who is said to have abetted the commission of
suicide must have played an active role by an act of
instigation or by doing certain act to facilitate the
commission of suicide. Therefore, the act of abetment
by the person charged with the said offence must be
proved and established by the prosecution before he
could be convicted under section 306, Indian Penal
Code.”
Upon perusal of the judgments of the Hon'ble Supreme
Court referred above, it is required to be borne in mind that in cases
of alleged abetment of suicide, there must be proof of direct or
indirect acts incitement to commission of suicide. Merely on the
allegations of harassment without there being any positive action
proximate to the time of occurrence on the part of the accused which
led or compelled the person to commit suicide, conviction in terms of
section 306 of I.P. Code is not sustainable. Therefore, what is
required is that, unless there is any positive action proximate to the
time of occurrence on the part of the accused, which led or compelled
the person to commit suicide conviction under section 306 is not
sustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 5436 OF 2013
Vijay @ Munna Bharat Gurkhude Vs The State of Maharashtra
CORAM: S.S. SHINDE &
V.L. ACHLIYA, JJ.
PROUNCED ON: 9th SEPTEMBER, 2014
Citation:2016 ALLMR(cri) 2566
3] By way of filing this Application under Section 482 of
Criminal Procedure Code, the applicant seeks quashment of criminal
proceeding / Criminal Case registered as R.C.C.No. 551/2013 and
now pending on the file of Chief Judicial Magistrate, Beed, District
Beed.
4] The prosecution story as it emerges from the material
placed on record against the applicant is as under:
One Mr.Vidyanand Murlidhar Kale, working as Police
Inspector, Beed City Police Station, Beed filed a complaint on 10th
August, 2013. It is stated in the said complaint that, he is working
with the City Police Station, Beed, since 1st December, 2011. On 13th
March, 2013, in Beed City Police Station, Beed, one application
signed by complainant namely Datta Vithalrao Shelke, Resident of
Govindnagar, Beed, dated 15th February, 2013 was received from the
office of the Superintendent of Police, Beed. The said application
was registered in Inward Register of the Police Station on 13th March,
2013, and Mr. Anant Shankarrao Londhe working as Police Constable
in the said Police Station, was entrusted inquiry of the said
application.
5] In the said application, it was complained that, one
person namely Vijaykumar Bharat Gurkhude i.e. applicant herein,
residing near Beed Rural Police Station, Bundelpura, Beed had given
hand loan of Rs.10,000/- to the Datta Vithalrao Shelke [deceased].
The said hand loan was returned by him to Shri Vijaykumar Bharat
Gurkhude with interest. According to the contents of the complaint,
total amount of Rs.30,000/- was paid to present applicant, still, the
applicant made further demand of Rs.20,000/- from Datta Vithalrao
Shelke. When Datta Vithalrao Shelke refused to give said amount,
Vijaykumar Bharat Gurkhude threatened Datta Vithalrao Shelke that,
he will kill him if Rs.20,000/- are not given. The said Datta Shelke in
his application further stated that, he is a rickshaw puller and some
how able to maintain his family. Because of the threat given by
applicant herein, he has left with no alternative except to commit
suicide. It was prayed in the application that, enquiry be made into
allegations and he should be given protection. Thereafter, PH/240 i.e.
Anant Shankar Londhe took search of the complainant Datta
Vithalrao Shelke in Govindnagar area, Beed, however, he was not
traced out. Police Head Constable Londhe callecd Vijaykumar Bharat
Gurkhude, resident of Bundelpura, Beed in the Police Station before
Shri Vidyanand Murlidhar Kale, P.I., for inquiry. Accordingly,
inquiry was made with Shri Vijaykumar Bharat Gurkhude. He gave
evasive reply. He told that, he is rickshaw puller and he never met
Shri Datta Vithalrao Shelke.
On transfer of P.I. Anant Shankarrao Londhe from Beed
Police Station to Dindrud Police Station, he was relieved from duty
on 25th June, 2013. The investigation papers were handed over to Shri
Charansing Parsi Walvi – Police Head Constable B.No.1137 for
further enquiry. Accordingly, Police Head Constable B.No.1137
Walvi caused enquiry, by visiting the various Police Station. On
enquiry with Police Station Shivajinagar, it came to his knowledge
that the complainant Datta Vithalrao Shelke hanged himself in his
house located in Govindnagar and committed suicide, on 19th
February, 2013 and on account to that A.D.was registered with the
Police Station Shivajinagar on 7/2/2013 under Section 174 of
Criminal Procedure Code. The said papers were submitted to the
Tahsil office for sanction on 9th March, 2013. The Police Constable
Charansing Parsi got the Photostat copies of those papers from the
Tahsil office, Beed. Upon reading these papers, it transpired that, the
statements of four persons namely Vithal Asaraji Shelke, Rukmin
Vithal Shelke, Swati Dattatraya Shelke and Santosh Shrimant
Khandagale were recorded during the inquiry. Upon reading their
statements, it is revealed that, Datta Vithalrao Shelke was in trouble
and he told them that, he has to return loan.
6] It is further case of the complainant Vidyanand
Murlidhar Kale that, upon perusal of the contents of the application of
Shri Datta Vithalrao Shelke, the statements of four witnesses
recorded in A.D.No.7/2013, it transpired that, due to repeated demand
of amount of interest on loan by Vijaykumar Bharat Gurkhude,
resident of Bundelpura, Beed to Shri Datta Vithalrao Shelke and also
because of threat given that if the amount is not returned, he will kill
Shri Datta Vithalrao Shelke, Datta committed suicide by hanging
himself in his house and accused Vijaykumar Bharat Gurkhude,
resident of Bundelpura, Beed, is responsible for commission of
suicidal death by Shri Datta Vithalrao Shelke and therefore, complaint
is lodged under Section 306 of IP Code and Section 32 (B) (C), 33 &
34 of Money Lending Act, vide C.R.No.97/2013. On completion of
investigation charge sheet came to be filed in the Court against the
applicant.
7] We have heard learned Counsel appearing for the
applicant and learned Additional Public Prosecutor for the State. We
have perused the First Information Report, charge sheet and
accompaniment of the charge sheet. Upon perusal of the
memorandum of post mortem examination conducted at District
Hospital, Beed, the cause of death of deceased is mentioned as
asphyxia due to hanging. We have carefully perused the statement of
the family members of the deceased and in particular his wife Swati.
Upon perusal of the statements of the family members of the
deceased, none of the family members stated that, the deceased told
the name of applicant herein as well as the loan was borrowed from
the applicant. Upon reading the statements of all family members of
the deceased, it appears that, the deceased told them, he is under
mental pressure since he has to return loan amount. It has come in
the statement of Smt.Swati that, she did ask the name of the person
from whom loan is borrowed by the deceased. However, deceased
did not disclose name of any person. In fact, the statement of four
family members of the deceased were recorded in A.D.No.7/2013.
8] It appears from evidence on record that, Shri Datta
Vithalrao Shelke committed suicide by hanging himself in his house
on 19th February, 2013. According to the Investigation Officer,
application was received on 13th March, 2013, signed by the deceased
and offence is registered on 10th August, 2013. Delay in registering
the FIR raises serious doubt about the genuineness of the allegations
in the application received which was allegedly signed by the
deceased. It is not the case of the prosecution that, during the course
of investigation, said application was sent to handwriting expert so as
to find out whether the said application is written and signed by the
deceased. Upon careful perusal of the material placed on record, it
appears that, said application was never sent for handwriting expert so
as to find out whether the said application was really written and
signed by the deceased.
9] It has come on record that, the applicant was called for
investigation by the concerned Police Officer. In his statement, he
stated that, he does not know Shri Vidyanand Murlidhar Kale and he
never advanced loan to him. There is no material placed on record,
which would indicate that, some loan was advanced by the applicant
to the deceased. In absence of any material to that effect on record, it
would be difficult to believe the prosecution case that, the loan was
advanced by the applicant to deceased and there was persistent
demand of the interest on said amount and as a result, under mental
stress the deceased committed suicide. Therefore, the entire
prosecution case is full of suspicion and is a case of no evidence.
Therefore, trial on the basis of such material would be exercise in
futility and wastage of valuable time of the Court. It is settled
position in law that when the Court comes to the conclusion that,
there is absolutely no material on record to try the applicant, in that
case, further proceeding deserves to be quashed since no fruitful
purpose would be served by continuation of such proceedings.
10] The provisions of Section 107 and 306 of the Indian Penal
Code reads thus:
“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 persons 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”.
Section 306 of the Indian Penal Code reads thus:
“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.”
11] Upon careful reading of the provisions of Section 107,
in the light of the material collected by the prosecution, in our view
there is absolutely no material on record to suggest that, the applicant
in any manner instigated the deceased or he was involved in any
conspiracy or intentionally aided by any act or illegal omission in
abetting the deceased to commit suicide. As per the provisions of
Section 306, if any person commits suicide, whoever abets
commission of such suicide, in that case only, the provisions of
Section 306 of IP Code are attracted. In the light of the material
placed on record, as already observed, none of the family members of
the deceased stated that, the deceased told them the name of the
applicant or any overact was attributed to him. On the contrary,
Smt.Swati, wife of the deceased, in her statement told that, they have
no complaint against any person.
12] The Hon'ble Supreme Court in case of Randhir Singh
Vs. State of Punjab, (2004) 13 SCC 129 has reiterated the legal
position as regards Section 306, Indian Penal Code in para 12 and 13.
Para 12 and 13 the Hon'ble Court has observed as under:
“12. Abetment involves a mental process of
instigation a person or intentionally aiding that person
in doing of a thing. In cases of conspiracy also it would
involve that mental process of entering into conspiracy
for the doing of that thing. More active role which can
be described as instigating or aiding the doing of a
thing is required before a person can be said to be
abetting the commission of offence under section 306,
Indian Penal Code.
13. In State of W.B. Vs. Orilal Jaiswal this Court
has observed that the Courts 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 transpires to the Court that a
victim committing suicide was hypersensitive or
ordinary petulance, discord and differences in domestic
life quite common to the society to which the victim
belongs and such petulance, discord and differences
were not expected to induce a similarly circumstances
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.”
13] The Hon'ble Supreme Court in case of Amalendu Pal @
Jhantu Vs. State of West Bengal, reported in AIR 2010 SC 512, after
considering various earlier judgments on this issue, observed in para
15 & 16 as under:
“15. Thus, this Court has consistently taken the view
that before holding an accused guilty of an offence
under section 306, Indian Penal Code, the Court must
scrupulously examine the facts and circumstances of the
case and also assess the evidence adduced before it in
order to find out whether the cruelty and harassment
meted out to the victim had left the victim with no other
alternative but to put an end to her life. It is also to be
borne in mind that in cases of alleged abetment of
suicide there must be proof of direct or indirect acts of
incitement to the commission of suicide. Merely on the
allegation of harassment without their being any
positive action proximate to the time of occurrence on
the part of the accused which led or compelled the
person to commit suicide, conviction in terms of section
306, Indian Penal Code is not sustainable.”
16. In order to bring a case within the purview of
section 306 of Indian Penal Code there must be a case
of suicide and in the commission of the said offence, the
person who is said to have abetted the commission of
suicide must have played an active role by an act of
instigation or by doing certain act to facilitate the
commission of suicide. Therefore, the act of abetment
by the person charged with the said offence must be
proved and established by the prosecution before he
could be convicted under section 306, Indian Penal
Code.”
Upon perusal of the judgments of the Hon'ble Supreme
Court referred above, it is required to be borne in mind that in cases
of alleged abetment of suicide, there must be proof of direct or
indirect acts incitement to commission of suicide. Merely on the
allegations of harassment without there being any positive action
proximate to the time of occurrence on the part of the accused which
led or compelled the person to commit suicide, conviction in terms of
section 306 of I.P. Code is not sustainable. Therefore, what is
required is that, unless there is any positive action proximate to the
time of occurrence on the part of the accused, which led or compelled
the person to commit suicide conviction under section 306 is not
sustainable.
15] In the light of discussion in foregoing paragraphs, we
are of the opinion that, further proceeding in R.C.C. No.551 of 2013,
registered at City Police Station, Beed, deserves to be quashed, as
continuation of such proceeding will be futile exercise. Accordingly,
we quash and set aside the further proceeding in R.C.C.No.551 of
2013, based upon C.R.No. 97 of 2013, registered at City Police
Station, Beed, District Beed, against the applicant.
16] Rule made absolute on above terms.
17] Criminal Application stands disposed of accordingly.
Sd/- Sd/-
[V.L.ACHLIYA, J.] [S.S.SHINDE,J.]
No comments:
Post a Comment