Bombay High Court
Bhojraj Kisan Naktode And Others vs State Of Maharashtra Thr. Police ... on 23 January, 2019
Author: P.N.Deshmukh
Bench: P.N.Deshmukh, Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.569 OF 2017
1. Bhojraj Kisan Naktode,
Aged about 43 years, Occ.Nil.
R/o. At Post Kurud, Tah.Desaiganj,
Distt. Gadchiroli.
2. Dewanand Laxman Kawale,
Aged 29 years, At Post Mataward
Desaiganj, Distt. Gadchiroli.
3. Rajiq Sheikh Mehmood Sheikh,
Aged 40 years, Occ. Business,
r/o. Kamla Nagar, Juni Wadsa Road,
Desaiganj, Distt. Gadchiroli.
4. Waman Maniram Pise,
Aged 69 years, Occ. Business,
r/o. At Post Sawangi, Tah.
Desaiganj, Gadchiroli.
5. Madhukar Manohar Akamwar,
Aged 52 years, Occ. Business,
r/o. Tukum Ward, Fawara Chowk,
Desaiganj, Distt. Gadchiroli.
6. Krishna Hariji Meshram,
Aged 41 years, Occ. Business,
r/o. At Post Desaiganj, Wadsa,
Tq.Wadsa, Distt.Gadchiroli.
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7. Sunil Hariji Meshram
Aged 39 years, Occ. Business,
At Post. Mata Ward, Desaiganj,
Wadsa, Tq.Wadsa, Distt.Gadchiroli.
8. Vimal Bhallar Meshram,
Aged 48 years, Occ.Business,
r/o. Desaiganj Wadsa, Distt.
Gadchiroli.
9. Vidya Ratiram Lokhande,
Aged 55 years, Occ.Housewife,
r/o. Ambedkar Ward, Wadsa,
Distt. Gadchiroli. .......... APPLICANTS
// VERSUS //
1.State of Maharashtra,
Through Police Station Officer,
Police Station, Desaiganj,
Tah.Desaiganj, Distt. Gadchiroli.
2. Pornima Uddhav Khobragade,
Aged 31 years, Occ. Service,
r/o. Kidwai Ward, Desaiganj,
Tq. Desaiganj, Distt.Gadchiroli. .......... NON-APPLICANTS
____________________________________________________________
Mr.A.A.Dhawas, Advocate for the Applicants.
Mr.S.J.Kadu, A.P.P. for Non-Applicant no.1.
Mr.H.G.Katekar, Advocate for Non-Applicant no.2.
____________________________________________________________
CORAM : P.N.DESHMUKH
AND
ROHIT B. DEO, JJ.
DATE : 23.1.2019.
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ORAL JUDGMENT (Per P.N.Deshmukh, J) :
1. This application is filed by accused nos. 1 to 9 for quashing of F.I.R. No.327 of 2017 registered by Police Station, Desaiganj, Tq. Desaiganj, District Gadchiroli for the offence punishable under Section 306 r/w. 34 of the Indian Penal Code.
2. The facts, in brief, giving rise to the present application are as under :
Applicants are reputed businessmen and have no criminal antecedents. One Uddhav Khobragade was President of Bahujan Hitay Nagri Pat Sanstha, Desaiganj, District Gadchiroli, while applicant no.1 is Manager and applicant nos. 2 to 9 are Directors of the said Society. On 17.5.2017, Uddhav Khobragade consumed poison and he died due to poison on 21.5.2017. On his death, non-applicant no.2, wife of Uddhav lodged report with non-
applicant no.1 alleging that, apart from working as a L.I.C. Agent and Agent for collecting Recurring Deposits, electric bills etc. her deceased husband had established above named Co-operative Society, of which he was President and applicants were Manager and ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 ::: 4 apl569.17.odt Directors. According to Complainant, from the year 2017, deceased used to be under mental stress and had informed her that applicant no.1, in spite of being Manager of the Society, was not looking after Society's Accounts and had, in fact, extended threats to deceased to lodge false complaint against him to D.D.R. though applicant no.1 himself was involved in misappropriating Society's funds and applicant nos. 2 to 9 in-spite of being Directors were not co-operating her husband.
3. In the background of above facts, it is case of non- applicant no.2 that, on 17.5.2017, when deceased was in the house, at about 6.00 a.m., one Aslam Khan came to their house, who was attended by deceased, to whom deceased informed that he had consumed poison. Aslam Khan, therefore, took her husband to Rural hospital for treatment and thereafter, to General Hospital, Gadchiroli from where he was shifted to General Hospital, Chandrapur. However, died on 21.5.2017. According to Complainant, after death of her husband, five chits were found by her in the table drawer of her husband, out of which two were written by her husband implicating applicants to be responsible for his death. After finding ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 ::: 5 apl569.17.odt such chits, complaint came to be lodged against the applicants on 3.7.2017, upon which, offence came to be registered as aforesaid.
4. Mr.A.A.Dhawas, learned Counsel for the applicants, by referring to alleged Suicide note as well as report, submitted that no offence punishable under Section 306 of the Indian Penal Code is made out as, from these documents, it cannot be said that applicants, in any manner, instigated or abetted or aided deceased to commit suicide; however, they are falsely involved by non-applicant no.2. It is also pointed out that though deceased consumed poison on 17.5.2017 and died on 21.5.2017, report is belatedly lodged on 3.7.2017 by falsely implicating applicants. Learned Counsel for the applicants, by referring to provisions of Sections 306 and 107 of the Indian Penal Code together with contents of report, has demonstrated as to how no ingredients of above Sections can be made out and for the purpose of present application, has relied on the case of Madan Mohan Singh vs. State of Gujarat and another, [2010 ALL MR (Cri) 3245 (S.C.)] and on the case of S.S.Chheena vs. Vijay Kumar Mahajan and another reported in 2010 ALL MR (Cri) 3298 (S.C.) as well as on the Judgment of Division Bench of this Court in the case of Dilip Ramrao Shirasrao and Others vs. ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 ::: 6 apl569.17.odt State of Maharashtra reported in 2016 ALL MR (Cri) 4328, wherein above two Authorities are duly relied and F.I.R. registered for the offence punishable under Section 306 of the Indian Penal Code is quashed. It is, therefore, prayed that, in view of above facts and law, the application be allowed.
5. Prosecution had filed its affidavit-in-reply contending that, during the course of investigation, Suicide note was forwarded to the Office of Handwriting Expert on 20.6.2017. However, said document was returned back from the Office of Handwriting Expert as there were certain deficiencies and thereafter, on removing the same, it was again forwarded to the Handwriting Expert on 5.10.2017. Record reveals that, for want of Handwriting Expert's report, much time is granted to prosecution to place it on record from 27.7.2018 to 21.12.2018, on which date prosecution along with pursis filed copy of report of Assistant State Examiner for Documents, who has opined that, after carefully and thoroughly examining documents with the aid of Scientific Equipments in the Laboratory, no definite opinion can be given in absence of sufficient identifying characteristics for comparison. As such, even on forwarding alleged Suicide notes to the Handwriting Experts, no case ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 ::: 7 apl569.17.odt of prosecution is advanced in any manner as, from the negative report, it cannot be said if the Suicide notes which are alleged to be recovered from the table drawer of the deceased are in his handwriting.
6. Though, by interim order, this Court, on issuing notice, had passed order to not to file charge-sheet without permission of this Court, had allowed investigation. In that view of the matter, it was expected from prosecution to place on record material whatsoever collected during the course of investigation. However, we find that except for placing on record negative Handwriting Expert's report, nothing is on record establishing applicants' involvement in the present crime except for relying upon the contents of report as above contending that since applicant no.1 being Manager and others being Directors of Pat Sanstha since were not cooperative with deceased, he was abetted to commit suicide as applicant no.1 in his capacity as Manager, instead of maintaining accounts of the Society, used to extend threats to deceased that he will implicate him for misappropriation of funds of Society and for this reason, deceased was under stress about refund of deposits of its depositors and had, therefore, committed suicide.
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7. In the background of above, learned Additional Public Prosecutor, therefore, submitted that as there is prima facie case against the applicants establishing their involvement in the present crime, the application be rejected.
8. Having considering submissions of both the sides and facts involved in the application as aforesaid, we find that, by now, law on this subject is well established. Hon'ble Apex Court in catena of its Judgments has considered the scope and meaning of "abetment" under Sections 107 and 306 of the Indian Penal Code to find out whether the charge and conviction for an offence under Section 306 of the Indian Penal Code can sustain merely on the allegations of harassment of the deceased and whether the ingredients of abetment are attracted on the basis of statement of the deceased.
9. In order to properly comprehend the scope and ambit of Section 306 of the Indian Penal Code, it is important to carefully examine the basic ingredients of Section 306. The said Section, is reproduced, thus :
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9 apl569.17.odt "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."
"Abetment" has been defined under Section 107 of the Indian Penal Code. The said Section, is reproduced, 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 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 ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 :::
10 apl569.17.odt 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 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."
16. Thus, the offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107.::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 :::
11 apl569.17.odt As such, in case of abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide.
10. In the given facts, we find it useful to refer to the case of Madan Mohan Singh vs. State of Gujarat and another, [2010 ALL MR (Cri) 3245 (S.C.)], wherein, on considering alleged Suicide note and F.I.R., Hon'ble Apex Court has observed thus :
"11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this." ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 :::
12 apl569.17.odt and further observed that the suicide note and the F.I.R. do not impress at all as they cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.
11. In the case of S.S.Chheena vs. Vijay Kumar Mahajan and another reported in 2010 ALL MR (Cri) 3298 (S.C.), the facts are as follows:
"There was a dispute between one Saurao 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 ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 ::: 13 apl569.17.odt 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 thereby, said S.S.Cheena approached the Supreme Court. The Apex Court observed thus :
"27. this Court in Chitresh Kumar Chopra Vs. 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 suicidability pattern is different from the other. Each person has his own idea of selfesteem and selfrespect. 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.::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 :::
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12. In the background of above law, perusal of F.I.R. would reveal involvement of applicant no.1 Bhojraj Kisan Naktode, Manager of Pat Sanstha as he is actively found involved in the Society's business and had indulged into quarrel with deceased for not performing his part satisfactorily since was not maintaining any accounts, which fact was disclosed by deceased to non-applicant no.2 suspecting misappropriation of Society's funds by applicant no.1 and on inquiring him about the same, applicant no.1 extending threats to deceased to falsely involve him in some crime related to their Pat Sanstha saying since deceased was Chairman of the same, he can be held responsible. Involvement of applicant no.1 is further found as he had misappropriated Society's funds due to which Society's balance was nil and the deceased, for the purpose of refund of money of its depositors, had sold two plots and had also mortgaged his house situated in Ambedkar Ward and had arranged for amount of Rs.50,00,000/-. In spite of same, Society was to repay certain more amount to its Members and for this reason, the deceased always used to remain in stress.
In the absence of specific report of Handwriting expert establishing alleged Suicide note in the handwriting of deceased, it ::: Uploaded on - 06/02/2019 ::: Downloaded on - 27/03/2020 03:29:39 ::: 15 apl569.17.odt would not be safe to consider the same. However, on bare perusal of contents of report, it definitely shows involvement of applicant no.1 as Manager having involved in commission of misdeeds of Society's affairs along with other employees. However, applicant nos. 2 to 9 are admittedly Directors and not employees of the Society. In that view of the matter, since the F.I.R. does not spell out any ingredients sufficient to attract Section 306 of Indian Penal Code against applicant nos. 2 to 9, the application is liable to be allowed qua said applicants. In the result, application is partly allowed as per order below.
Rule is made absolute in terms of prayer clause (A) of the application qua applicant no.2 Dewanand Kawale, applicant no.3 Rajiq Sheikh, accused no.4 Waman Pise, accused no.5 Madhukar Akamwar, accused no.6 Krishna Meshram, accused no.7 Sunil Meshram, accused no.8 Vimal Meshram and accused no.9 Vidya Lokhande only.
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16 apl569.17.odt The application is rejected against applicant no.1 Bhojraj Kisan Naktode.
No orders as to costs.
JUDGE JUDGE
[jaiswal]
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