Bombay High Court
Sanjeev S/O. Pandharinath Unhale And ... vs The State Of Maharashtra And Anr on 11 January, 2021
Author: M.G. Sewlikar
Bench: T.V. Nalawade, M.G. Sewlikar
(1) cri appln 2235.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2235 OF 2019
1. Sanjeev S/o Pandharinath Unhale,
Age: 61 years, Occ. Social Worker,
R/o: B-4, Pride Park, Vedant Nagar,
Aurangabad.
2. Vrinda W/o Sundar Latpate,
Age: 55 years, Occ. Housewife,
R/o: C/o Sanjeev Unhale,
B-4, Pride Park, Vedant Nagar,
Aurangabad. ... Applicants
Versus
1. The State of Maharashtra
Through Pundalik Nagar Police Station,
Aurangabad.
2. Bhausaheb S/o Nanasaheb Latpate,
Age: 40 years, Occ: Agriculture,
R/o at post Barikapsi, Tq. Ashti,
District Beed. ... Respondents
...
Advocate for Applicants : Mr. N. S. Ghanekar
PP for Respondent No.1/State : Mr. D. R. Kale
Advocate for Respondent No.2 : Mr. T. M. Tandale
...
CORAM : T.V. NALAWADE &
M.G. SEWLIKAR, JJ.
DATE : 11.01.2021
::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 :::
(2) cri appln 2235.19
JUDGMENT :(Per: M.G. Sewlikar, J.) Rule. Rule is made returnable forthwith. Learned A.P.P. and the learned advocate for the respondent no.2 waive service. With the consent of both the sides the matter is heard finally at the stage of admission.
2. This is an application under Section 482 of the Cr.P.C. for quashing of the FIR.
3. Respondent no.2 is the cousin of the deceased-Sundar alias Dilip Vilas Latpate. It is alleged in the FIR that the deceased married applicant no.2 about 37 years ago. It was an inter caste marriage. Deceased-Sundar was 'Vanjari' by caste, whereas applicant no.2 is 'Brahmin' by caste. Applicant no.1 is the elder brother of applicant no.2.
4. It is further alleged in the FIR that soon after the marriage applicant no.1 started humiliating the deceased calling him a person of low caste. This led to frequent quarrels between the deceased and applicants. In the last thirty seven years applicant no.1 did not permit the deceased-Sundar and applicant no.2 to visit his (applicant no.1's house). Applicant no.1 did not permit the applicant no.2 to meet their (applicant no.1 and 2's) mother. On that count there used to be quarrels between the deceased and applicant no.1. on 15.02.2018 deceased-Sundar had posted a message on Facebook calling ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: (3) cri appln 2235.19 upon applicant no.1 to let applicant no.2 meet her mother. In that post the deceased had mentioned that applicant no.1 had made the deceased to apologise on account of poor financial position of the deceased. The said post on facebook gives detailed account of the harassment caused by applicant no.1 to the deceased. Deceased-Sundar had narrated to the informant the harassment caused to the deceased by applicant no.1 and sister of the deceased by name of Gayabai Dinkar Garje, Chayabai Vishwanath Sonawane, Chaya brother Shivaji and nephew Ambikaprasad Vishwanath Sonawane. Applicant no.1 took applicant no.2 to his house from the matrimonial home of applicant no.2. At that time applicant no.1 had said to applicant no.2 that applicant no.2 should not live with a person of low caste like the deceased- Sundar. Applicant no.1 was responsible for spoiling the relations between the deceased-Sundar and applicant no.2. The deceased Sundar was in deep love with applicant no.2.
5. It is further alleged that about four to five months before the incident applicant no.2 had made a complaint in Womens Cell in the office of Police Commissioner, Aurangabad. It was a false complaint. Deceased-Sundar had to attend the proceedings. At that time applicant no.2 had threatened deceased-Sundar. At that time applicant no.2 had said to deceased-Sundar that she committed a grave mistake by marrying deceased-Sundar and that ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: (4) cri appln 2235.19 she would get deceased Sundar, his sister Gayabai killed through applicant no.1. Because of these threats deceased-Sundar had fainted outside the office of the Police Commissioner. Deceased Sundar committed suicide on 14.04.2019 by hanging himself. He has left a suicide note. The suicide note is in possession of applicant no.2. It is alleged in the FIR that deceased-Sundar committed suicide because of harassment caused by applicant nos.1 and 2. FIR was accordingly lodged on 27.04.2019, on the basis of which offence punishable under Section 306 read with Section 34 of the I.P.C. came to be registered against applicant nos.1 and 2.
6. During the pendency of this application charge-sheet came to be filed against the applicants. The applicants sought amendment to quash the charge-sheet, which was allowed.
7. Heard Shri N.S. Ghanekar learned counsel for the applicants, Shri D.R. Kale learned PP for the State and Shri Tandale learned counsel for the respondent no.2.
8. It is not disputed that applicant no.2 married deceased-Sundar about 37 years since before the incident. It is also not disputed that deceased- Sundar put an end to his life by hanging himself on 14.04.2019. Post mortem report shows cause of death as asphyxia due to hanging. It is not disputed ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: (5) cri appln 2235.19 that applicant nos.1 and 2 are brother and sister. Shri Ghanekar learned counsel for the applicants submitted that deceased-Sundar caused harassment to applicant nos.1 and 2. Deceased-Sundar always demanded money from applicant no.1. Deceased-Sundar was always in need of money and on that count he harassed applicant nos.1 and 2. There are WhatsApp messages indicating that deceased Sundar demanded money time and again from applicant no.1. He submitted that applicant no.2 had filed a complaint with the police as she was fed up of the harassment caused by deceased. He submitted that applicant nos.1 and 2 are the victims of the harassment of deceased. He submitted that suicide note does not even remotely indicate applicant nos.1 and 2 were responsible for the suicide of the deceased-Sundar. Therefore, offence punishable under Section 306 is not made out. None of the ingredients of Section 306 of the I.P.C. are attracted. He therefore prayed for quashing of the FIR and the charge-sheet.
9. Shri Kale and Shri Tandale submitted that applicant no.1 was responsible for the marital discord between applicant no.2 and the deceased. Suicide note also shows that applicant no.1 was responsible for spoiling the marriage of the deceased-Sundar and applicant no.2. They submitted that applicant no.1 caused unnecessary interference in their marriage. Due to which applicant no.2 left the society of deceased Sundar and started living ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: (6) cri appln 2235.19 with applicant no.1. They submitted that the Facebook post dated 15.02.2018 implicates applicant no.1 for the suicide of the deceased. They submitted that applicant no.1 created such a situation that the deceased was left with no alternative but to put an end to his life. They therefore prayed for the dismissal of the application.
10. The contents of the FIR indicate that applicant no.1 caused harassment to the deceased-Sundar. The contents further indicate that applicant no.1 used to humiliate deceased Sundar by calling him a person of low caste. Facebook post dated 15.02.2018 by suicide belies these contentions. Facebook post is re-produced in verbatim as under:
"vjs laT;k] lkBh vksykaMyh rjh rq lq/kkj.kkj ukghl- rw Lor%yk pk.kD; letrksl Ik.k lOok :i;s nf{k.kk ?ks.kkjk HkVth ns[khy rqÖ;kis{kk ljl Bjsy- eqGkr rw lk;dks >kyk vkgsl- ukuk QM.kohl rj vk/khpkp ! rq ukWjey vlrkl rj l[;k cfg.khyk frP;k vkbZyk HksVw fnys vlrsl- ekÖ;k ck;dksyk frP;k vkbZyk HksV.;klkBh izR;sd osGh rqÖ;k gkr&ik;k iMkos ykxrs] fouaR;k djkO;k ykxrkr ! HkMO;k] rw lk;dks ukghl rj dk;\ vkrk frP;k vkbZyk HksV.;kph ijokuxh feGo.;klkBh mPPk U;k;ky;kr tk;ps dk\ iksfylkaps laj{k.k ekxk;ps dk\ vjs fdrh iS'kkpk ekt- vlwu&vlwu fdrh iSlk vlsy rqÖ;kdMs\ Qkj Qkj rj ikp'ks dksVh :i;s- rs rjh dls dekoysl\ lkekftd dk;kZP;k ukok[kkyh- cukoV daIkU;k dk<qu- lkY;k ,dnk pkSd'khr vMdykl rj mOkZjhr Egkrkji.k tsye/;s tkbZy vkf.k rqÖ;klkscr rqÖ;k lxG~;k ck;dkgh vlrhy- tkÅ ns eyk rqÖ;k iS'kkr vkf.k dkG~;k /kan~;kr dkghp baVjsLV ukgh eh rqyk iq<hy dkj.kklkBh gk esy ikBorks vkgs-::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 :::
(7) cri appln 2235.19 1½ gk esy okpY;kuarj rkrMhus rw Lor%gqu oankyk lkax'khy dh] fryk d/khgh] fdrhgh osG vkbZyk HksVrk ;sbZy- ;klkBh fryk dq.kkP;kgh ijokuxhph xjt ukgh-
2½ fryk dkghrjh lq: d:u nsrks] efgukHkj Fkkac] gh vk'kk yko.ks ,dne can dj-
3½ rqEgh CkWadkauk fygwu fnys dk dh] vkeps dtZ lath mUgkGs QsMrhy---- rqyk eksckbZypk handset ?ksowu fnyk rj rqeps dtZnkj QsMrhy---eksckbZypk handset ?ksowu fnyk rj rqeps dtZnkj vkeP;ki;Zar ;srhy---- pqR;k] rq QDr ,d NksVklk Jhear O;Drh vkgsl] dqByk jktk ukghl- vlY;k xaerh can dj- 4½ rw eyk iS'kkus d/khp fodr ?ksow 'kdysyk ukghl] 'kdr ukghl- Hkfo";krgh ?ksow 'kdukj ukghl- rq>h nkur fdrh vkf.k d'kh vkgs gs eyk pkaxys ekfgr vkgs-
5½ eh rqyk vusdnk lkafxrysys vkgs dh] ekÖ;k fo'okr rw ukghlp- eh d/khgh dks.kkdMs rqyk cke.k EgVysys ukgh] Eg.kr ukgh- rq>h i=dkj Eg.kwu eh best [kjkc dj.;kpk iz'up ukgh- rq>h th dkgh best vlsy rh rqÖ;keqGsp vkgs- eh d/kh rqyk dks.kkph pepsfxjh dj vls lkafxrysys ukgh-
6½ rqyk iqUgk ,dnk vkBo.k d:u nsrks] rw oankpk Eg.kts rqÖ;k cfg.khpk] ekÖ;k ck;dksPkk [kwu dj.;kpk iz;Ru dsyks gksrkl] rsaOgk vkEgh dksVkZr xsyks vlrks rj vkt rq>s HkO;&fnO; lkezkT; dkslGwu iMysys vlrs vkf.k rw ck;dk&Hkkoklg ljdkjh ikgq.kk vlrkl- R;kosGh rqyk lksMwu fnys-
7½ R;kuarj rq ekÖ;k vkfFkZd ifjfLFkrhpk xSjQk;nk ?ksowu eykp ekQh ekxk;yk ykoyh- vcs lkY;k] rwyk oankeqGs okjaokj lkMwu |kos ykxrs- ukghrj rqyk laqnj yViVs dk; vkgs] nk[koys vlrs- 8½ ekÖ;kfo"k;h rqyk }s"kkpk dkohG >kyk vkgs- eh fdaOkk oankus fdaok vkEgh nks?kkauh vkRegR;k dsyh rj rq tckcnkj jkg'khy HkMO;k- rqyk fdeku lkr o"kkZph f'k{kk gksbZy- xkaMq eh rqÖ;koj eqrrks HkMO;k-
lqanj yViVs "
11. In this post the deceased-Sundar called applicant no.1 a psycho. He abused applicant no.1 in filthy language. He accused applicant no.1 of engaging in illegal and immoral business. In this post deceased-Sundar stated ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: (8) cri appln 2235.19 that applicant no.1. had tried to kill applicant no.2. This shows that instead of applicant no.1 causing any harassment to deceased, there is evidence to show that deceased was causing harassment to applicant no.1 by hurling expletives. So far as the allegations as regards calling the deceased a person of low caste is concerned absolutely no evidence is adduced. WhatsApp messages produced by applicants indicate that deceased Sundar used to call applicant no.1 as Baman. WhatsApp message dated 31.08 texted by deceased-Sundar to applicant no.1 indicate that deceased Sudnar had called applicant no.1 as "Baman". The message further show that deceased Sundar had demanded Rupees Five Lakhs from applicant no.1. Applicant no.2 lodged the FIR on 26.11.2018 in the police station after getting fed up of the harassment caused by deceased-Sundar. Thus, the evidence on record show that it was the deceased who was calling names to applicant nos.1 and 2.
12. Suicide note is produced on record. Admitted hand writing of deceased Sundar has been sent to hand writing expert along with the disputed suicide note. There is nothing on record to show that hand writing expert has given his opinion. Even if it is assumed for the sake of arguments that said suicide note is in the hand writing of the deceased even then it does not take prosecution case any further. The said suicide note is re-produced in verbatim as under:
::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 :::
(9) cri appln 2235.19
"14 ,izhy 2019
igkVs
izfr]
iksyhl LVs'ku-
eh lqanj yViVs dsoG ek>k esgq.kk latho mUgkGsus vkRegR;k dj.;kl Hkkx ikMys Eg.kqu vkRegR;k djhr vkgs- latho mUgkGsp xqUgsxkj tkrh;oknh Hkz"V vkgs- R;kus ekÖ;k iRuhps eu ifjorZu d:u vkepk 30 o"kkZpk lalkj eksMyk R;kyk f'k{kk feGkyh ikfgts-
¼lqanj yViVs½ 'ksoVph bZPNk& ek>s ih-,e- dj.;kph xjt ukgh rlsp eyk ea «kkaXuh ¼/kkfeZd fo/kh d: u;sr½ nsÅ u;s v'khgh ek>h 'ksoVph bZPNk vkgs- rjhgh ek>h cfg.k xtkckbZ xtsZ fgpk vafre fu.kZ; jkghy ekÖ;k iRuhyk dGokos vkf.k vaR;n'kZukyk rh vkyh rj eyk cjs okVys vlrs vlks] vkDdk eh rqyk vk/khgh EgVys gksrs dh] vkbZis{kk rqyk eh tkLr =kl fnyk- vkDdk] fc>usle/;s ?kkc:u pkyr ukgh- fu.kZ; yodj ?;k- derjrk rsOgkP;k rsOgk dk<kO;kr- LihM ikfgts] VkbZe fdyhax d: u;s-
eyk laT;keqGs ejk;psp gksrs- vlks] eyk foLk:u tk- Hkfo";kr eh dnkfpr rqÖ;klkBh vks>sp >kyks vlrks- vlks] {kek djkoh-
rq>k HkkÅ fnyhi vkDdk] ?kjkrhy lxGs lkeku rkC;kr ?ksÅu fodqu Vkdk-"
13. The said suicide note does not indicate as to what kind of harassment applicant no.1 had inflicted on deceased-Sundar. The suicide note indicates that he had harassed not only his mother but his sister whom he referred as Akka. The portion of suicide note addressed to Akka shows that he ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: ( 10 ) cri appln 2235.19 would have been a burden on the family. Even if the contents of the suicide note are accepted at their face value, it does not indicate that applicant no.1 had any time instigated, incited or intentionally aided the deceased to commit suicide. If the relations between the husband and wife are strange and if a brother gives shelter to such a destitute wife, it cannot be termed as instigation to commit suicide. Nothing has been brought on record to show except vague allegations that applicant no.1 was responsible for spoiling the marriage of the deceased and applicant no.2 and that applicant no.1 was responsible for the suicide of the deceased-Sundar. On the contrary the facebook post dated 15.02.2018 shows that the deceased had abused the applicants in filthy language. The said post is produced with the charge-sheet. This facebook post nowhere indicates that applicant no.1 had spoiled the marriage of applicant no.2 with deceased-Sundar. On the contrary this facebook post accuses applicant no.1 of attempting murder of applicant no.2. This message indicates that deceased had grievance against applicant no.1. However, merely having grievance cannot amount to instigation. Word instigation has been explained in Praveen Pradhan Vs. State of Uttaranchal & Anr; (2012) 9 Supreme Court Cases 734 in [Chitresh Kumar Chopra Vs. State (Govt. Of NCT of Delhi)].
::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 :::
( 11 ) cri appln 2235.19 "17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation."
14. The evidence collected by the prosecution does not show that deceased was instigated by the applicant no.1 to commit suicide. Therefore, on the basis of this shaky evidence it will be an abuse of process of law if the applicants are forced to face the tribulations of trial.
15. From the evidence collected by the prosecution, it appears that applicant no.2 had filed a complaint against deceased-Sundar alleging cruelty at his hands to applicant no.2. On such background, applicant no.1 gave shelter to applicant no.2. To take care ones sister cannot amount to instigation to commit suicide. It appears to be an independent act of the deceased-Sundar which is evident from the portion of suicide note addressed to his sister to whom he referred as Akka. In the said note he has stated that he would have been a burden on the family. In these circumstances, it appears to be an independent act of deceased-Sundar. No evidence is adduced to show that applicant nos.1 and 2 had the intention to bring about the suicide of the deceased. In this view of the matter, continuation of ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 ::: ( 12 ) cri appln 2235.19 prosecution would be a futile exercise. Hence, we deem it proper to quash the FIR and the charge-sheet. Hence the following order is passed:
ORDER I) Application is allowed.
II) Relief is granted in terms of prayer clause-B. Rule made absolute in those terms.
[M.G. SEWLIKAR, J.] [T.V. NALAWADE, J.]
mub
::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 10:17:51 :::