Bombay High Court
Appasaheb @ Eknath Nago Salunke vs The State Of Mah. Thr. P.S.O., P.S. ... on 22 August, 2017
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
revn180.09 2
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.180 OF 2009
Appasaheb @ Eknath Nago Salunke,
Aged about 48 years, Occupation Service,
R/o Shivam Apartment, 511/06,
Saivibhag, Ambarnath (East),
District Thane. ..... Applicant.
:: VERSUS ::
The State of Maharashtra,
Through Police Station Officer,
Police Station Hivarkhede,
Tahsil Khamgaon, District Buldana. ..... Non-applicant.
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Shri S.V. Sirpurkar, Counsel for the applicant.
Shri I.J. Damle, Addl.P.P. for the non-applicant/State.
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CORAM : V.M. DESHPANDE, J.
DATE : AUGUST 22, 2017.
ORAL JUDGMENT
1. The present criminal revision application takes an exception to order passed by learned Sessions Judge at Khamgaon dated 10.6.2008 below Exhibit 51 in Sessions Case .....2/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:15 ::: Judgment revn180.09 2 2 No.110 of 2006. By the impugned order, learned Judge of the Court below rejected application Exhibit 51 which was filed on behalf of the present applicant under Section 227 of the Code of Criminal Procedure, 1973 for discharge.
2. I have heard learned counsel Shri S.V. Sirpurkar for the applicant and learned Additional Public Prosecutor Shri I.J. Damle for the non-applicant/State. Both learned counsel for the parties vehemently submit in support of their respective briefs. Learned Additional Public Prosecutor Shri I.J. Damle also made available copy of charge-sheet for perusal of this Court.
3. Before adverting to facts of FIR No.71 of 2005 from which the present application for discharge arises, I would like to place on record prelude for lodging the said first information report.
4. Deceased is one Kirti. It is not in dispute that her .....3/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:15 ::: Judgment revn180.09 2 3 marriage was performed by first informant Krishna Shankar Patil, father of Kirti with one Vikram Shamrao Patil on 1.5.2005. It appears that Kirti was not satisfied with her marriage. Therefore, when first informant Krishna was out of town, she ran away in the night of 4.5.2005 along with one Mukesh Yashwant Salunke. This Mukesh is nephew of the present applicant.
5. Search of Kirti was made and ultimately she was found in the house of the present applicant at Ambarnath (East), a suburb of Mumbai. The incident of the said, running away by Kirti from her house, led to lodging of the first information report against Mukesh and other accused persons including the present applicant.
A Trial was conducted for the offences punishable under Sections 363, 366, 116, 212, 376, and 153A read with Section 34 of the Indian Penal Code against Mukesh and 11 .....4/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 4 other accused persons including the present applicant who was arranged as accused No.3 in Sessions Case No.142 of 2005. The said Trial was resulted into acquittal of all the accused persons vide judgment and order dated 19.5.2006 passed by learned 4th Ad hoc Additional Sessions Judge at Jalgaon.
6. Be that as it may, during pendency of the said Trial, first informant Krishna, who obtained custody of his daughter Kirti from Mahila Sudhar Gruha, sent Kirti to her maternal uncle Vijay Balwant Pandhare, a resident of Lakhanwada and Kirti was residing at Lakhanwada.
7. On 1.8.2005 first informant Krishna had been to his house at Jamner. He received a phone call from Lakhanwada that his daughter Kirti consumed poison and she is admitted to hospital of Dr. Mankar at Akola. She was there for about 4-5 days. Thereafter, she was shifted to the Government Hospital at Akola. However, during her treatment, she .....5/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 5 expired on 8.8.2005. Postmortem report was conducted and, thereafter, funeral was also performed.
8. First informant Krishna, father of deceased Kirti lodged a report against 5 persons viz. Mukesh and his other relatives including the present applicant. Prior to lodging of the first information report, accidental death proceedings bearing AD No.14 of 2005 under Section 174 of the Code of Criminal Procedure, 1973 were registered at Hiwarkhede Police Station.
9. Krishna, father of deceased Kirti gave his report to Hiwarkhede Police Station. On the basis of said, FIR No.73 of 2005 for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code was registered against the present applicant and others. The said first information report states about earlier incident of running away of Kirti with Mukesh and she being located at the house of the present .....6/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 6 applicant at Ambarnath (East), a suburb of Mumbai. It is stated in the first information report that after custody was obtained by the first informant, she was sent to her maternal uncle's place at Lakhanwada. As per the first information report, since Kirti was kidnapped by Mukesh and his friend co-accused Vijay Punamchand Sungat, at the instance of other co-accused Punamchand Babu Sungat and Sau. Anita Punamchand and the present applicant, he established sexual intercourse with Kirti and, therefore, her reputation was malign in the society and, therefore, she committed suicide.
10. Statements of various witnesses were recorded by the investigating officer in F.I.R. No.71 of 2005. Even, a chit was also found which according to the prosecution is written by deceased Kirti herself. The said was also seized under seizure panchanama. The .....7/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 7 gist of the said chit shows that she is fed up and she does not give blame on anybody for committing her suicide.
11. After completion of the entire investigation, the charge-sheet was filed. Learned Judicial Magistrate First Class at Khamgaon, in whose Court the investigating officer presented the final report, noticed that the offence is exclusively triable by the Court of Sessions. Therefore, on 21.7.2006 he passed committal order.
12. After committal to the Court of Sessions, case was registered as Sessions Case No.110 of 2006. In the said sessions case, application Exhibit 51 was moved by the present applicant for his discharge from the proceedings on the ground that the entire investigation and the charge-sheet are conspicuously silent in respect .....8/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 8 of any role that can be attributed to the present applicant by which it could be said that he is responsible for suicidal death of Kirti. Of course, the application was contested by learned Public Prosecutor incharge of the brief. Learned Judge of the Court below dismissed the application.
Hence, this criminal revision application.
13. The offence of abetment is a separate and distinct one. Section 107 in Part-V of the Indian Penal Code deals with abetment of thing. It would be useful to reproduce herein below the said provision.
"Section 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 .....9/-::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 :::
Judgment revn180.09 2 9 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.
Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
From the said provision of law, in order to .....10/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 10 hold a person as causing abetment of a thing, the prosecution is under an obligation to point out (i) instigation on his part to any person to do a particular thing; or (ii) engages with one or more persons in any conspiracy for doing of that thing, and (iii) intentionally aids by an act or an illegal omission for doing of that thing.
The dictionary meaning of "instigate" is, to provoke, to incite, or to urge.
Section 108 of the Indian Penal Code deals with abettor.
14. In order to attract culpability of a person that he has abeted a person to commit suicide, in my view, the prosecution must show involvement of such a person either direct or indirect by which it could be even presumed that by doing such an act either directly or .....11/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 11 indirectly has induced or provoked a person to commit suicide.
15. The law, on such type of cases, is not in res integra. Under various situations and circumstances when an offence is registered against an accused person under Section 306 of the Indian Penal Code, are quashed by the Honourable Apex Court and by this Court. Few pronouncements are :- Swamy Prahaladas ..vs.. State of M.P. and another, reported at 1995 SCC (Cri) 943 ; M. Mohan ..vs.. State Represented by the Deputy Superintendent of Police, reported at 2011 ALL MR (Cri) 1659 (S.C.); Amalendu Pal @ Jhantu ..vs.. State of West Bengal, reported at 2009 ALL MR (Cri) 3755 (S.C.); Sanju alias Sanjay Singh Sengar, reported at (2002)5 SCC 371 ; Madan Mohan Singh ..vs.. State of Gujarat and anr, reported at 2010 ALL MR (Cri) 3245 (S.C.) ; and .....12/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 12 Dr. Mrs. Seema Ajay Bhoosreddy ..vs.. The State of Maharashtra, reported at 2011 ALL MR (Cri) 3326.
16. In the background of aforesaid settled principles of law, let us examine factual aspect so as to reach to a conclusion as to whether even prima facie the prosecution is able to show the finger of guilt against the present applicant as a person responsible for inducing Kirti to commit suicide. As observed in earlier part of this judgment, the applicant along with other co- accused was prosecuted in the Sessions Trial for the offences punishable under Sections 363, 366, 116, 212, 376, and 153A read with Section 34 of the Indian Penal Code. Of course, charge under Section 376 of the Indian Penal Code was not against the present applicant. All the accused persons including the present applicant were acquitted of the offences by learned Judge of the .....13/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 13 Court below and which has attained the finality. Even, in the said offences allegation against the present applicant was that he provided shelter to principal accused Mukesh and deceased Kirti at his behest. The present first information report also recites the said allegation against the present applicant. Thus, role, that is attributed against the present applicant, is that he provided shelter to deceased Kirti and principal accused Mukesh when Kirti ran away with him at Mumbai. There is nothing available on record to show that when Kirti along with Mukesh reached to the house of the present applicant, the applicant was having knowledge that Kirti has run away from her house. In my view, no objection can be taken to the act on the part of the present applicant to provide shelter or to accommodate them in his house looking to the fact that .....14/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 14 the present applicant is real uncle of principal accused Mukesh.
17. During the course of investigation of the crime, the investigating officer has recorded statements of Vijay Balwant Pandhare, Vilas Baburao Pandhare, Smt. Shantabai Bhagwat Pandhare, Sau. Mangalabai Vijay Pandhare, and Abhishek Vijay Pandhare.
18. Amongst others, Vijay Balwant Pandhare is maternal uncle of deceased Kirti. He is the Superintendent of Engineer in the Water Works Department at Nashik. He is resident of Lakhanwada. Even, first informant Krishna states in his first information report that after custody of Kirti was obtained from Mahila Sudhar Gruha, in stead of putting her in his house he chose to ask Kirti to reside with maternal uncle Vijay Pandhare at Lakhanwada.
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::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 15 Abhishek is son of Vijay Pandhare. Sau. Mangalabai is wife of Vijay Pandhare. Smt. Shantabai works in the house of Vijay Pandhare at Lakhanwada.
19. Perusal of statements of these prosecution witnesses shows that Kirti was residing at Lakhanwada prior to her death for about one and half months. The statements of these prosecution witnesses are totally silent that at any point of time they noticed that Kirti was disturbed or she exhibited any act by which it could be gathered that she was disturbed and/or complained about the present applicant.
20. Admittedly, the applicant resides at Ambarnath (East), a suburb of Mumbai, which is far away place from Lakhanwada. It is not the prosecution case, as it could be seen from the charge-sheet, that at any point of time, during the stay of Kirti at .....16/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 16 Lakhanwada, the present applicant tried to establish any type of contact with her. However, in order to keep the record straight, I would like to observe that during the investigation, the investigating officer has recorded a statement of one Vilas Baburao Pandhare, who is one of relatives of Vijay Pandhare, and resident of Lakhanwada. According to his statement, on 25.7.2005 he noticed, when returning from his agricultural field, Kirti standing in front of the house of Vijay Pandhare and that time two unknown persons aged about 20 to 25 years came on a motorcycle. They stopped in front of the house of Vijay Pandhare and then had laughed at Kirti and they went away. According to the statement of this Vilas Pandhare, he can identify those persons if those are shown to him.
21. To a specific query being put to learned .....17/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 17 Additional Public Prosecutor from the Court as to whether in the present case any test identification parade was conducted or not, learned Additional Public Prosecutor, after having gone through the entire charge-sheet, submits that no such test identification parade was conducted.
This is all the prosecution case about the suicidal death of Kirti.
22. There can be number of reasons, why persons commit suicide. It is not that for every suicide there would be either inducement or incitement or provocation. In order to bring home the case for the offence punishable under Section 306 of the Indian Penal Code, it is the bounden duty of the prosecution to place such material before the Court by which even a prima facie involvement of the accused is required to .....18/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 18 be exhibited. This Court is aware of the principles while deciding the prosecution case at the time of consideration of an application for discharge. Even, at the stage of consideration of the application for discharge, the prosecution cannot take a spacious plea that it is open for the prosecution to prove its case during the course of the Trial. To prove the case at Trial, in my view, there must be some foundation in the prosecution case and that can only be seen while examining the charge-sheet. If there is no iota of evidence against any accused, in my view, he cannot be asked to face a gamut of the Trial and in such cases the Court should readily intervene in the matters by passing the appropriate orders.
23. In the light of the aforesaid discussions and in view of the fact that there is no evidence whatsoever in .....19/-
::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 ::: Judgment revn180.09 2 19 the nature against the present applicant, in my view, learned Judge of the Court below has mechanically rejected the application even withtout looking and discussing the prosecution case cursorily. That leads me to pass the following order:
ORDER
i) The criminal revision application is allowed.
ii) Order passed by learned Sessions Judge at Khamgaon dated 10.6.2008 below Exhibit 51 in Sessions Case No.110 of 2006 is hereby quashed and set aside.
iii) Application Exhibit 51 in Sessions Case No.110 of 2006 is hereby allowed.
iv) Applicant Appasaheb @ Eknath Nago .....20/-::: Uploaded on - 01/09/2017 ::: Downloaded on - 05/09/2017 00:26:16 :::
Judgment revn180.09 2 20 Salunke stands discharged from Sessions Case No.110 of 2006.
JUDGE !! BRW !! ...../-
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