abetment could be termed complete only when there is an instigation
or engagement in the alleged conspiracy of commission of crime.
There is hardly anything on record to form an opinion that, the act of
petitioners herein constituted conspiracy to commit the crime of
abetment. The observations of the Apex Court in the matter of
constitution of abetment is required to be taken into account i.e. (a)
Instigating a person to commit an offence, (b) engaging in conspiracy
to commit it or (c) intentionally aiding a person to commit it. The
abetment is required to be coupled with the criminal intention i.e.
mens rea, so as to brought against the accused person charge of
commission of crime in question. It is, therefore, necessary to show
that, the petitioners have intentionally aided the suicide by late
Yuvraj, which is not brought on record either in the complaint or in
other investigation material. The Apex Court, while dealing with the
issue of abetment has observed that, the abetment involves mental
process, wherein the element of instigation, is very much required to
be established. The intention to instigate in aid to a person in
committing suicide is required to be brought on record and in
absence of positive act on the part of the accused to instigate or aid
the commission of suicide, the case would not stand against the
accused persons. An appropriate support can be drawn in support of
the above referred proposition on the judgment of the Apex Court in
the matter of Sohan Raj Sharma vs. State of Haryana reported in
2008 (1) S.C.C. 2015. The proximity and nexus of the act alleged
against the petitioners and conduct and behavior of petitioners, while
establishing the link of abetment, is absent in the present case, as is
apparent from the fact that, the alleged abetment, according to the
complainant, begun in September 2013 resulting into suicide of
Yuvraj on 24/02/2013 i.e. almost after period of five months.
44. In the light of above, the reliance is placed by learned
Counsel for the petitioners on the judgment of this Court in the matter
of Binod s/o Ratan Sarkar & ors. (supra) and the Apex Court in the
matter of Netai Datta (supra) are required to be taken note of. The
Apex Court, while dealing with the issue as regards the offence
under Section 306 of Indian Penal Code has observed that, it would
stand only if there is an abetment for commission of crime and the
parameters of the abetment have been clearly established, which
provides for instigating any person to do a thing.
45. From the narration of the contents in the F.I.R. and other
material, in any case, a conclusion cannot be drawn that, there was
an instigation at the behest of the petitioners, which has resulted into
commission of the crime. It is also required to be taken note of the
fact that, there is no suicide note left behind by the deceased Yuvraj
pointing out fingers towards the commission of offence by the
petitioners. As such, the ingredients of Sections 306, 107 and 108 of
Indian Penal Code are not satisfied in the present case.
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 629 OF 2014
Ratan Pundlik Salunkhe,
v
State of Maharashtra,
CORAM : S.S. SHINDE &
N.W. SAMBRE, JJ.
Dated : 13TH MARCH, 2015
Citation: 2016 ALLMR(CRI)4858
Heard learned respective Counsel and learned A.P.P.
2. The petitioners herein are the accused in Crime No. 156
of 2014 registered on 21/05/2014 with the police station, Chalisgaon
for the offence punishable under Section 306 read with Section 34 of
the Indian Penal Code.
3. Respondent No. 2 Ashok alleged in the complaint
tendered with the Police Station Officer on 21/05/2014 that he is
residing on the address mentioned therein along with his younger
brother Yuvraj, his brother’s wife Kavita, his wife Anita, his son
Saurabh and is serving in Zilla Parishad School at Ozar. He further
claims that his brother Yuvraj was holding diploma in Agriculture,
hired a block in Lucky Complex near Bus stop in Chalisgaon from
Raosaheb Gulabrao Bhosale petitioner No. 3 in 2007 and started
business of agricultural items such as seeds, insecticides, pesticides
etc.
4. It is claimed that the petitioners herein entered into
partnership with the brother of complainant i.e. late Yuvraj and
reduced the same in writing on stamp paper on 22/06/2007 and also
opened an account in the name of firm “Patanai Krushi Kendra” in
Central Bank of India, Branch Chalisgaon, wherein petitioner No. 4
was authorized to operate the said amount.
5. It is further claimed that the petitioners herein alongwith
late brother of complainant Ashok, decided to close down the said
business resulting into issuance of four cheques in favour of Yuvraj
towards the settlement of account. It is claimed that Yuvraj was
entitled to Rs.16,11,074/- from the said firm and on the issue of
settlement of account, it is claimed that petitioner No. 4 entered into
altercation and assaulted late Yuvraj in September, 2013. It is further
alleged that the complainant at that time was neither present nor any
complaint to the police station was made about said incident by
Yuvraj.
6. It is further claimed in the complaint that, on 11/09/2013,
petitioner No. 4 issued three cheques of Rs.4,00,000/- each and one
cheque of Rs. 3,00,000/-. It is claimed that all these cheques were
honoured.
7. According to the complainant, petitioner No. 4 without
any investment in the firm, withdrawn Rs.10,00,000/- in September,
2013 and has not paid Rs. 10,00,000/- to his brother.
8. It is further claimed that late Yuvraj along with his father
Shivaji, uncle Tanaji, and complainant Ashok had been to the
petitioners demanding amount Rs.10,00,000/-, however, the
petitioners have refused to pay the said amount. Said fact according
to complainant was narrated by Yuvraj to his wife Kavita and also to
his wife Anita. It is claimed that the said amount was demanded for
starting of new business.
9. It is claimed that on 23/02/2014 the petitioners abused
Yuvraj when he was summoned at the residence of petitioner No. 4
in filthy language and was informed that he will not get his money
and also issued threats to him.
10. It is further claimed that on 24/02/2014 the said Yuvraj
committed suicide in the dwelling house, which according to the
complainant, was abetted by present petitioners. It is claimed by the
complainant that the above referred act of the petitioners has abetted
the cause of suicide of late Yuvraj.
11. Though Yuvraj has committed suicide on 24/02/2014,
however the complaint came to be lodged on 21/05/2014, as is
reflected in the narrations.
12. Upon receipt of the said complaint, the offence referred
above, came to be registered and investigation was set in motion.
13. The petitioners questioned the registration of the offence
and sought quashing of the same on the various grounds, which
prompted this Court to issue notice and interim relief was granted as
regards filing of the charge sheet.
14. With the consent of the parties, this matter is taken out
for final disposal at admission stage.
15. Learned Counsel for the petitioners would urge that the
accusations against the petitioners made by the complainant are
false and far away from truth. According to them, there is no
question of abetting suicide of Yuvraj, as they claimed that till date of
his death, relationship between the parties were as cordial. He
further urged that upon reading of entire complaint, no mens rea could
be disclosed as regards abetment of suicide by Yuvraj. It is further
claimed that during life time of Yuvraj, no threats or any move on the
part of Yuvraj was noticed that he will commit suicide and intention to
commit suicide by Yuvraj was neither disclosed by him either in the
interaction or otherwise. He further urged that it was never within
their knowledge that the deceased might take extreme step of
committing suicide. As according to them, in absence of criminal
intention, the prosecution against them is not sustainable. It is further
claimed that even if the investigation papers are perused by this
Court, the link establishing abetment by petitioners in commission of
suicide by deceased Yuvraj cannot be established with that of the
conduct of present petitioners and as such, sought quashing of the
F.I.R.
16. In support of the contentions raised in the present
petition, the petitioners have placed reliance upon the judgment of
the Apex Court in the matter of Netai Datta vs. State of West
Bengal reported in 2005(2) SCC 659, so as to aver that no mens rea
could be attributed to the petitioners including of any role in any
conspiracy, which ultimately instigated Yuvraj to commit suicide.
Learned Counsel for the petitioners has also placed reliance upon
the judgment of this Court in the matter of Binod s/o Ratan Sarkar &
Ors. vs. The State of Maharashtra & Anr. reported in 2014 ALL MR
(Cri.) 1216, so as to canvass that in absence of direct or indirect acts
of incitement to commission of suicide, the petitioners can not be
held responsible. It is also submitted that there has to be a proof to
that effect. In addition to above, learned Counsel for the petitioners
would urge that even if the accusations made in F.I.R. are taken to be
true as its face value, still according to them, no offence can be made
out against the accused persons.
17. Per contra, learned A.P.P. would urge that in the
statement of brother of deceased, there are specific attributions to
present petitioners as regards the cause for suicide. Learned A.P.P.
would further urge that wife of deceased also supported the case of
the complainant. According to learned A.P.P., it is a fit case that upon
appreciation of evidence in the trial, foundation could be established
including that of live link between the death of Yuvraj and that of
conduct of accused driving Yuvraj to commit suicide. Learned A.P.P.
as such, prayed for dismissal of the petition.
18. Mr. Deshmukh, learned Counsel for respondent No. 2
complainant has advanced submissions on the same line as made
by learned A.P.P. and in addition to above, would urge that the
petitioners must face trial as there is sufficient evidence available
against the accused persons. He further urged that it is premature at
this stage to infer that accused are not involved in the crime in
question. According to Mr. Deshmukh, learned Counsel for
respondent No.2, the conduct of the accused as narrated in F.I.R.
which is required to be accepted for the purpose of considering the
claim for quashing, in the present petition to be true, same points
finger towards the accused persons that they have abetted the
suicide of late Yuvraj and as such, prayed for dismissal of the
petition.
19. After having gone through the accusation made in the
F.I.R. by the complainant-respondent No.2 and other investigation
papers, so also the documents which are placed on record by the
petitioners in support thereof, it is noticed that Yuvraj has entered into
partnership with petitioner No.4 on 22/06/2007. It is further noticed
that there is a deed of dissolution of partnership entered into between
Yuvraj and petitioner No. 4 on 16/11/2013, wherein there is a
reference to partnership deed dated 22/06/2007, which partnership
started from 05/05/2007 in the name and style of “M/s. Patanai Krishi
Kendra”. The deed of dissolution is executed by citing the cause
that parties have decided to voluntarily dissolve the partnership firm
w.e.f. 30/09/2013 wherein the entire liability of the firm was taken
over by petitioner No. 4 whereas the tax dues to be paid as per the
assessment of the authority by the respective parties.
20. The shop and establishment license was also cancelled
as per intimation dated 06/12/2013.
21. Perusal of the reply submitted by respondent No.2-
complainant reflects that initially the prosecution has taken note of
death of Yuvraj, who has expired on 24/02/2014 and intimation about
which was given to the police on 25/02/2014 at 00.15 hrs. However,
respondent No. 2 claimed that though he has given police complaint,
neither any offence was registered nor any inquiry was made in the
matter.
22. The fact remains that the complainant on 25/02/2014
has given intimation about suicide by his brother Yuvraj.
23. On 15/03/2014 the Investigating Officer communicated
with the complainant that he has shown inability to give any
statement on 25/02/2014. However, upon subsequent
communication on mobile phone and otherwise to him, he has not
come forward to give any statement in relation to suicidal death of his
brother. The said communication dated 15/03/2014 which claimed to
have been objected by the complainant wherein he claimed that
police have registered a false offence and doubted integrity of the
Investigating Officer in carrying out the investigation.
24. Wife of deceased namely Kavita who has made
complaint on 18/03/2014 to the Police Inspector, towing the line of
complaint with that of respondent No. 2 as regards the conduct of
present petitioners, prompting her husband to commit suicide. In
view of allegations made by the complainant, the matter was handed
over to another P.S.I. for investigation, who has also noticed non cooperation
by respondent No. 2 resulting into unpleasant written
exchanges and threats by respondent No. 2 to take recourse to other
modalities, such as hunger protest.
25. Perusal of investigation papers reveals that the wife of
deceased, Kavita initially alleges ill intention of present petitioners,
however in subsequent statement narrated about good relation of the
petitioners with that of complainant and settlement of account. She
has further stated that she has no claim whatsoever against the
present petitioners. Her father Bapurao, uncle Jaywant, another
uncle Prabhakar, brother Sachin, and her brother’s wife Ujwala gave
similar statements that they have no claim against the present
petitioners. In the statement of Kavita, it is noticed that she has
made a claim that she has given complaint at the behest of Ashok,
elder brother of late Yuvraj.
26. Upon scrutiny of the investigation papers, it is noticed
that the documents in relation to the balance sheet of the firm,
statement of account were forwarded to the Auditor of the Cooperative
Societies to have his opinion in the matter. Similar requests
are made to Income Tax Officer, so also Sales Tax Officer, however,
the response of the said authorities in the matter are still awaited. As
such, from the said record it cannot be ascertained as regards the
settlement of accounts by the petitioners as claimed by them in the
application which is disputed by the complainant Ashok.
27. Though the petitioners’ version is supported by the other
witnesses i.e. Kavita and her relatives from her parental side, the
adjoining shop owner in the said complex and attendant in the shop
of petitioner No. 4 and deceased Yuvraj, Chartered Accountant
Sanjay, adjoining shop owners Ramesh, Raviraj, Walmiki and Dipak
in their statements fortifies the stand of the accused petitioners.
28. From the record, there appears to be version supporting
the case of the petitioners from the investigation papers. Close
relatives of the deceased Yuvraj that is to say, brother, father, mother,
wife of complainant, his cousin brother supported the case of the
complainant.
29. Complainant-respondent No. 2 in his complaint dated
21/05/2014 narrated the following chronological events :-
a) The partnership in between deceased Yuvraj and
petitioner No. 4 Babanrao on 22/06/2007.
b) The petitioners became partners to the said firm as per
partnership dated 22/06/2007.
c) Petitioner No. 4 decided in September 2013 to close
down the business.
d) Dispute between petitioner No. 4 and late Yuvraj
resulting into altercation between petitioner No. 4 and
deceased Yuvraj in presence of petitioner Nos. 1 to 3.
e) Payment of an amount vide four cheques dated
17/09/2013.
f) Demand of additional Rs. 10,00,000/- by Yuvraj to
petitioner No. 4, however, the said demand was not honoured.
g) On 23/02/2014 petitioners called deceased Yuvraj and
abused him. On 24/02/2014 deceased Yuvraj committed
suicide and F.I.R. lodged by complainant-respondent No. 2 on
21/05/2014.
30. Though from the reply filed by respondent No. 2, it is
noticed that, respondent No. 2 was not satisfied with the investigation
carried out by prosecution, however, in the report lodged on
21/05/2014, the respondent No. 2 has not given single explanation
for lodging the said F.I.R. after period of almost three months. The
said act on the part of respondent No. 2 raises serious doubt on the
bonafides of respondent No. 2 in lodging the complaint against the
petitioners.
31. It is the case of respondent No. 2 that the accused
persons threatened deceased Yuvraj initially before dissolution of the
firm i.e. some time in September, 2013. It is important to note that
respondent No. 2 has not complained to the police about it. If the
said statement is tested in the light of the contents of the F.I.R., it is
noted that the said version is required to be disbelieved, as after the
alleged assault on the deceased Yuvraj in September, 2013 by the
petitioners, Yuvraj received four cheques from petitioner No. 4 which
were honoured as is stated in the F.I.R. As such, on one hand, the
complainant is saying that the deceased Yuvraj was assaulted which
was followed with the issuance of four cheques, which were
honoured in his favour. The above referred statement of the
complainant is really hard to digest. The said event though was
known to the complainant or Yuvraj, the issue was not taken up with
the police at that time. No explanation is offered even for the same. It
is important to note that deceased Yuvraj has executed Deed of
Dissolution of Partnership on 16/11/2013.
32. Subsequent to threat by the petitioners to Yuvraj,
particularly as is claimed in the complaint, in presence of
complainant-respondent No.2, his father and uncle etc., was also not
taken to its logical end by lodging complaint to the police. The last
threat before the death on 23/02/2014 by the petitioners was also not
reported to the police though respondent No.2 claims to be having
knowledge about the same. The above referred unnatural conduct
prompts this Court to disbelieve the case of the complainant about
alleged abetment.
33. Furthermore, upon analyzing the contents of the F.I.R., it
is noticed that, the complainant is relying upon partnership deed
dated 22/06/2007. The partnership dated 22/06/2007 is between
petitioner No. 4 and the late Yuvraj. Though it is claimed by the
respondent No. 2 in the complaint that all the petitioners are partners
in the said partnership deed, however, the names of the petitioner
Nos. 1 to 3 are absent from the said partnership deed. If the said
partnership deed is tested in the light of dissolution of partnership
deed brought on record by respondent No. 2, it is required to be
noted that, the dissolution deed was executed on 16/11/2013 in
between petitioner No. 4 and late Yuvraj. Petitioner No. 1 to 3 are not
party to the said deed of partnership or dissolution. Upon perusal of
investigation papers, it is noticed that, petitioner Nos. 1 to 3 have no
role in the commission of alleged crime of abating suicide by
deceased Yuvraj. It is required to be noted that, payment of four
cheques and honouring thereof is very much admitted by respondent
No. 2 in the complaint itself. Once it is admitted that an amount
around Rs. 15,00,000/- was paid to deceased Yuvraj in the month of
September 2013, dissolution deed was executed in the month of
November 2013, it is really hard to digest that, there was any mens
rea on the part of the petitioners in commission of crime in question.
It is also required to be noted that, only role attributed to petitioner
Nos. 1 to 3 is that, they have abused late Yuvraj on 23/02/2014.
Even if the said incident is taken to be true, it is not the case that at
that moment, Yuvraj immediately committed suicide. Yuvraj has
committed suicide on 24/02/2014 that too in the evening. It is also
required to be noted that, respondent No. 2 was not witness to
alleged threat given to Yuvraj on 23/02/2014. It is also required to be
noted that, the statement of the witness particularly that of wife of
deceased namely Kavita, though initially speaks of cordial relations
as regards partnership of petitioner No. 4 including that of proper
maintenance of account of the business, she has stated that, her
husband late Yuvraj never disclosed her about any misunderstanding
or differences between petitioner No. 4 or petitioners. She has further
stated that, the business was closed down as appropriate response
was not received.
34. It is also brought on record in her statement that, after
marriage with Yuvraj, they were not blessed with any issue for quite
long time and as such they have taken treatment from Dr. Sangita
Chauhan, Chalisgaon. It is also narrated by her that, late Yuvraj was
taking treatment from Psychiatrist. She in her statement dated
19/05/2014 referred above, noted that, Police Officer Sanjay Panje
visited her place for recording statement, however, she was not
permitted by respondent No. 2 to give statement. Subsequent
attempt on the part of Police Officer to record the statement, was also
not permitted by respondent No. 2 and respondent No. 2 was
instrumental in pressurizing her in moving the complaint against the
petitioners. She has also stated that, the amount that was given by
petitioner No. 4 to late Yuvraj was demanded by respondent No. 2
and respondent No. 2 further threatened, to dislodge Kavita from the
joint family property. She further stated that, her husband has
committed suicide. Similar statement was given by her parental
relatives.
35. The other witness namely Ashok Kashinath Wani, who
was working as Assistant in the firm of petitioner No. 4 and Yuvraj,
has stated that, Yuvraj used to look after the entire business and
accounts. He has further stated that, there were no differences in
between Yuvraj and petitioner No. 4. Witness Sanjay Anandrao
Khairnar, Chartered Accountant who used to look after the accounts
of the firm, has stated about deed of partnership and dissolution and
has also stated about cordial relations between petitioner No. 4 and
deceased Yuvraj. Witnesses Ramesh Fakira Kotkar (Wani), Raviraj
Jalamsingh Pardeshi and Walmik Dattatray Bhambare who are
having shop adjacent to the shop of late Yuvraj, have stated on same
line.
36. Statements made by Pravin Ramesh Patil claiming to be
cousin brother of Yuvraj and close friend Pandurang Patil, further
reflects about differences between petitioner No. 4 and deceased
Yuvraj and also about alleged threats.
37. Supplementary statements given by Kavita, widow of
deceased Yuvraj re-iterates her case with the subsequent complaint
given by her through respondent No. 2 dated 26/07/2014 was under
threat and coercion from respondent No. 2 and re-iterated that, she
has no complaint about death of her husband Yuvraj. Other
supplementary statement on record by Somnath Patil speaks about
ill act of respondent No. 2 as regards wrong certification of document
in his name and production thereof by respondent No. 2.
38. In the light of above, it is clear that, the F.I.R. is lodged
by respondent No. 2 after lapse of period of three months from the
death of deceased Yuvraj. The Investigation carried out till date
reflects that, no mens rea on the part of present petitioners to abet
the crime of suicide as there is hardly any link to the said act of
suicide as regards commission of act of petitioners herein.
39. It is also noted from the record that, Kavita-wife of
deceased Yuvraj has unequivocally stated in her statement that, she
had no grievance against the petitioners herein and complaint lodged
by her was upon pressure exerted by respondent No. 2, brother of
deceased Yuvraj.
40. The abetment of a thing is defined in Section 107 of
Indian Penal Code whereas abettor in Section 108, which provides
for an instigation by the accused to do that thing. It also provides for
conspiracy for doing that thing, if an act or illegal omission takes
place in pursuant to the conspiracy in order to do that thing. It further
provides for an intention in aiding an act or illegal omission in doing
of that thing.
41. In the present case, if we look into the conduct of the
petitioners in the light of accusation in the complaint, it is required to
be seen, as to whether the petitioners have intentionally aided by
their act in abetment of suicide of late Yuvraj.
42. The complaint discloses that the differences started in
September, 2013 before payment of amount around Rs.15,00,000/-
to the deceased Yuvraj by cheques by petitioner No. 4, execution of
dissolution of partnership deed and non-lodging of complaint to the
police about alleged threats or assault to Yuvraj by the petitioners. In
the wake of above conduct, it is really hard to believe that the
petitioners have abetted in suicide of deceased Yuvraj. What is
formed to be basis for making complaint of abetment is, non payment
of balance amount of Rs.10,00,000/-. Even if it is believed that the
said amount is outstanding, still how the said act could be linked with
that of abetment of suicide of Yuvraj, is not spelt out in the complaint
or in other material brought on record.
43. It is required to be observed that, the offence of
abetment could be termed complete only when there is an instigation
or engagement in the alleged conspiracy of commission of crime.
There is hardly anything on record to form an opinion that, the act of
petitioners herein constituted conspiracy to commit the crime of
abetment. The observations of the Apex Court in the matter of
constitution of abetment is required to be taken into account i.e. (a)
Instigating a person to commit an offence, (b) engaging in conspiracy
to commit it or (c) intentionally aiding a person to commit it. The
abetment is required to be coupled with the criminal intention i.e.
mens rea, so as to brought against the accused person charge of
commission of crime in question. It is, therefore, necessary to show
that, the petitioners have intentionally aided the suicide by late
Yuvraj, which is not brought on record either in the complaint or in
other investigation material. The Apex Court, while dealing with the
issue of abetment has observed that, the abetment involves mental
process, wherein the element of instigation, is very much required to
be established. The intention to instigate in aid to a person in
committing suicide is required to be brought on record and in
absence of positive act on the part of the accused to instigate or aid
the commission of suicide, the case would not stand against the
accused persons. An appropriate support can be drawn in support of
the above referred proposition on the judgment of the Apex Court in
the matter of Sohan Raj Sharma vs. State of Haryana reported in
2008 (1) S.C.C. 2015. The proximity and nexus of the act alleged
against the petitioners and conduct and behavior of petitioners, while
establishing the link of abetment, is absent in the present case, as is
apparent from the fact that, the alleged abetment, according to the
complainant, begun in September 2013 resulting into suicide of
Yuvraj on 24/02/2013 i.e. almost after period of five months.
44. In the light of above, the reliance is placed by learned
Counsel for the petitioners on the judgment of this Court in the matter
of Binod s/o Ratan Sarkar & ors. (supra) and the Apex Court in the
matter of Netai Datta (supra) are required to be taken note of. The
Apex Court, while dealing with the issue as regards the offence
under Section 306 of Indian Penal Code has observed that, it would
stand only if there is an abetment for commission of crime and the
parameters of the abetment have been clearly established, which
provides for instigating any person to do a thing.
45. From the narration of the contents in the F.I.R. and other
material, in any case, a conclusion cannot be drawn that, there was
an instigation at the behest of the petitioners, which has resulted into
commission of the crime. It is also required to be taken note of the
fact that, there is no suicide note left behind by the deceased Yuvraj
pointing out fingers towards the commission of offence by the
petitioners. As such, the ingredients of Sections 306, 107 and 108 of
Indian Penal Code are not satisfied in the present case.
46. In the light of above, in our opinion, the petitioners are
not required to be called upon to answer the prosecution and face
the trial. As such, the present petition is allowed in terms of prayer
clause (C) which reads thus:
“ C) By appropriate order or direction, the crime
bearing C.R. No. 154 /2014 registered with Chalisgaon
Police Station, for the offences punishable U/s. 306
read with 34 of the IPC dated 21.05.2014 may kindly be
quashed and set aside.”
[ N.W. SAMBRE, J. ] [ S. S. SHINDE, J. ]
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