Shashikant vs The State of Maharashtra

Sadhana S. Jadhav, J—Heard Adv. Mr. S.S. Gangakhedkar for the petitioner, and learned APP Mr. S.D. Kaldate for the respondent -State.

Rule. Rule made returnable forthwith. By consent, heard finally.

The petitioner herein assails the correctness and validity of the order passed by the Additional Sessions Judge, Aurangabad, dated 9-1-2015, thereby rejecting the application filed by the present petitioner, seeking discharge in Sessions Case No. 410/2010.

Such of the facts necessary for deciding the present Writ Petition are as follows :

On 15-8-2008, one Pravin s/o. Sudhirrao Pataskar lodged a report at Chawani Police Station, Aurangabad, alleging therein that his elder brother, namely, Pramod s/o. Sudhirrao Pataskar, was residing at Aurangabad along with his wife Manisha and their children. That, he was working as a painter. That, Pramod was married to Manisha, 10 years ago. The maternal house of Manisha was at Ahmednagar. The couple was residing in rental premises. That, two brothers of Manisha, namely, Vinayak and Ganesh, sons of Ramnath Jadhav, had assaulted Pramod on the ground that he was not working and hence, had no source of income. It is alleged in the FIR, that on 8th August 2008, Pramod had been to Aurangabad and had informed the first informant and his mother, that Vinayak and Ganesh were annoyed with him as he was not bringing home, the money earned by him and, therefore, it was difficult for Manisha to run the family. On 12th August 2008, Pramod had left the house, to return to Ahmednagar. However, on 13th August 2008, he returned home and borrowed Rs. 100/-from his mother. He left his bag in the house of his mother, to return to Ahmednagar. On 14th August 2008, at about 9.30 p.m., Pramod had committed suicide by jumping before a railway. Two chits were found in the pocket of Pramod, wherein it was stated that being fed up with the harassment meted out to him, at the hands of Vinayak Jadhav, Ganesh Jadhav, and the maternal uncle of Manisha, namely, Shashikant Pawar, Pramod had committed suicide. The present petitioner herein is the maternal uncle of Manisha. On the basis of the said FIR, Crime No. I-206/2008 was registered at Chawani Police Station, Aurangabad, against the present petitioner and two others, for offence punishable under Section 306 read with Section 34 of the Indian Penal Code.

The present petitioner was protected by way of pre-arrest bail. After completion of investigation, charge sheet was filed against all the accused on 7th February 2009. The accused are charge sheeted for offence punishable under Section 306 read with Section 34 of the Indian Penal Code.

The compilation of charge sheet would indicate that a chit was found in the pocket of deceased Pramod, indicating therein that on 6-8-2008, his brothers-in-law, namely, Vinayak and Ganesh, and the present petitioner had assaulted him in front of their house and had threatened him of dire consequences. That, he was coerced to detach himself from his wife and children and give up the job.

It is pertinent to note, that the incident is dated 14th August 2008 i.e. practically eight days after the alleged incident. Moreover, in the said chit, no particular role is attributed to the present petitioner, who happens to be the maternal uncle of Manisha i.e. wife of the deceased. Upon perusal of papers of investigation also, it is abundantly clear that there is no role attributed to the present petitioner, which would even remotely indicate that the present applicant has been responsible for the commission of suicide by deceased Pramod.

Section 107 of the Indian Penal Code reads as follows :

" 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 wilful misrepresentation, or by wilful 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. 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. "

Section 107 of the Indian Penal code contemplates that the mode of abetment should be an intentional aid or illegal omission in the doing of a thing. In order to constitute "''abetment"'', the abettor must be shown to have intentionally aided the commission of the crime. Mere proof, that the crime charged could not have been committed without the interposition of the alleged abettor, is not enough compliance with the requirements of Section 107 of the Indian Penal Code.

A person cannot be convicted of the abetment of an act, when there is no evidence to show that he had any knowledge that the said person would commit the said act. An act abetted should be committed in consequence of the abetment. Hence, an act would be deemed to be so committed if it is committed (a) in consequence of the instigation, or (b) in pursuance of the conspiracy, or (c) with the aid which constitutes the abetment. In the present case, there is no evidence on record, to even indicate that the present petitioner was, in any way, indulging with the matrimonial affairs of the deceased and his wife Manisha. No specific role has been attributed to the present petitioner.

In the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 SC 1998 : (2002) CriLJ 2796 : (2002) 1 DMC 773 : (2002) 1 JT 248 Supp : (2002) 4 SCALE 270 : (2002) 5 SCC 371 : (2002) 3 SCR 668 : (2002) 1 UJ 769 : (2002) AIRSCW 2035 : (2002) 3 Supreme 650 , the Hon''ble Apex Court has held as follows :-

" The word instigate denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea therefore is the necessary concomitant of instigation. "

In the present case, it cannot be held that the suicide was committed by Pramod in close proximity to the incident dated 6th August 2008. Hence, the present petitioner deserves to be discharged of the offence punishable under Section 306 read with Section 34 of the IPC. In the present case, the learned Additional Sessions Judge has not considered the compilation of the charge sheet or the role attributed to the present petitioner. All that has been considered by the learned Additional Sessions Judge is that, the name of the present petitioner is reflected in the suicide note. It, therefore, cannot be said that there has been substantive satisfaction of the learned Additional Sessions Judge, that an offence has been committed by the present petitioner.

Section 227 of the Code of Criminal Procedure, 1973, contemplates as follows :-

" Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. "

In the present case, the order passed by the learned Additional Sessions Judge does not, in any way, indicate that the learned Additional Sessions Judge has considered the compilation of the charge sheet. That, the learned Additional Sessions Judge has not recorded any finding, that there is sufficient evidence to proceed against the accused except placing reliance upon the suicide note which was found in the pocket of the deceased. In view of this, and for the reasons stated herein above, the petition deserves to be allowed.

In the result, the petition is allowed.

[A] The order dated 9th January 2015, passed by the Additional Sessions Judge, Aurangabad, below Exhibit 14 in Sessions Case No. 410/2010, is quashed and set aside.

[B] The present petitioner is discharged of the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.

Rule is made absolute in the above terms.