1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4587 OF 2009 Shri Balasaheb Govindrao Rahade : Applicant. Versus The State of Maharashtra : Respondent. Mr.A P Mundergi, Sr.Counsel with Mr. S K Shinde i/by Mr. Sagar Kasar for the Applicant. Mrs. M R Tidake, APP, for the Respondent/State. Mr. S D Patil for the original complainant. ALONG WITH CRIMINAL APPLICATION NO.4643 OF 2009 Shashikant Raoji Shinde : Applicant. Versus The State of Maharashtra : Respondent. Mr. M S Mohite i/by Mr. H E Palwe for the Applicant. Mrs. M R Tidake, APP, for the Respondent/State. Mr. S D Patil for the original complainant. CORAM : V. M. KANADE, J. DATE : 10th December 2009 COMMON P.C. 1. Heard the learned counsel appearing for the Applicants, learned counsel for the original complainant and the learned APP for the State. 2 2. The Applicants in both the Criminal Applications apprehen their arrest in a complaint filed against them in connection with the offence punishable under Section 306 r/w section 34 of the Indian Penal vide CR No.89 of 2009 registered with Wadivhare Police Station, Tal.Igatpuri, Dist. Nashik. 3. It is alleged in the complaint, which has been filed by one Subhash Balu Pandagle, that the deceased left the house on 11th September 20098 and his body was found hanging on a tree on 12th September 2009. A suicide note was found in his pocket which was dated 8th September 2009. It is also alleged that the present applicants had cheated the deceased and had on the basis of representations and assurances given which were given executed agreement for sale and had filed civil cases against the deceased. It is also alleged that applicant Shashikant Shinde had filed a criminal case against the deceased and had demanded Rs.Ten lacs as compensation. It is also stated that the applicant Balasaheb Rahade had illegally started stone crushing mill in the land of the deceased and therefore it is stated in the suicide note that these applicants were responsible for the death of the deceased. 3 4. Shri Mundergi, the learned senior counsel appearing for the applicant Balasaheb Rahade submitted that the father of the complainant owned about 21 acres of land and intially an agreement for sale was executed in 1994 by the deceased with the wife of the applicant Balasaheb Rahade and he had agreed to sell seven and half acres of land out of 21 acres of land owned by him. In 1997 the applicant Rahade started stone crushing mill. Thereafter by an unregistered agreement, ten acres of land was agreed to be sold in favour of the brother of the applicant Balasaheb Rahade by the power of attorney holder of the deceased. The deceased had also agreed to sell some more land to the other applicant Shashikant Shinde. Since the deceased did not executed the sale deeds in respect of the said lands, the wife of the applicant Rahade had filed a civil suit being Civil Suit No.404 of 2007 for specific performance and other consequential reliefs. Interim relief was also granted in favour of the wife of the applicant Rahade. The deceased had also filed a civil suit being Civil Suit No.479 of 2007 and had taken out an application for interim relief. However, the said application was rejected by an order dated 12/12/2008. The Applicant Shashikant Shinde also had filed a criminal case of cheating against the deceased and an arrested warrant was issued. The applicant Shashikant Shinde 4 had also claimed compensation of Rs.Ten lacs. It is therefore submitted that there was a dispute pending between the applicants and the deceased for since last two years and the deceased left the house on 11th September 2009, committed suicide on 12th September 2009 and he was carrying suicide note dated 8th September 2009. It is, therefore, submitted that the suicide was not direct result of quarel and dispute between the parties which was going on for last two years. It was further submitted that the suicide note left by the deceased shows that the deceased was in great stress and depretssion and that he was frustrated man. It was, therefore, submitted that the ingredients of section 306 of the Indian Penal Code could not be attracted in such a case and that it could not be said that the Applicants had abetted the deceased in committing suicide or had instigated him to commit suicide within the meaning of section 107 of the Indian Penal Code. 5. On the other hand, the learned counsel appearing on behalf of the original complainant, submitted that the deceased died as a direct result of various acts of the applicants which had forced him to commit suicide. He further submitted that the applicant in any case was not entitled to get anticipatory bail. He invited my attention to the suicide note and submitted that the deceased had narrated entire facts of the 5 alleged action of the applicants herein which has culminated in deceased committing suicide. 6. The learned APP appearing on behalf of the State supported the submissions made by the learned counsel for the original complainant. 7. In my view, there is much substance in the submissions made by the learned counsel for the applicants, in view of the admitted facts which are on record. Even if the facts are taken at their face value, it is difficult to suggest that the provisions of section 306 read with section 107 of the Indian Penal Code would be attracted in the facts and circumstances of the present case. The ratio laid down in the judgmentof the Apex Court, on which reliance has been placed by the learned counsel for the applicants, in my view, clearly applies to the facts of the present case viz. in the case of Sanju alias Sanjay Singh Sengar v/s. State of M.P, reported in AIR 2002 SC 1998. The Apex Court in para 7 of the said judgment has observed as under :- 7. Section 107 I.P.C defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or 6 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.” Similarly the Apex Court, after taking into consideration the facts of the said case has observed in Paras 13 and 15 as under :- 13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution 7 story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. 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. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below. 8 15. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt. Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not a handy work of a man with sound mind and sense. Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161 Cr.P.C. Before the Investigation Officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26th July, 1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25th July, 1998 and if the deceased came back to the house again on 26th July, 1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken pace on 25th July, 1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of 'abetment' are totally absent in the instant case for an offence under Section 306 I.P.C. It is in the statement of the 9 wife that the deceased always remained in a drunkened condition. It is a common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25th July, 1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death.” 8. In the present case also the deceased was carrying suicide note in his pocket since 8th September 2009, he left the house on 11th September 2009 and he committed suicide possibly in the night between 11th September and 12th September 2009. Dispute between the parties is pending since at least two years. First agreement for sale was executed by the deceased some time in 1994 and the deceased also appears to have been concerned with the criminal complaint filed by the applicant Shashikant Shinde and the demand of Rs.Ten lacs as compensation, and as such he was in great stress and depression and was a frustrated man. Therefore, it could not be said that the suicide was direct result of the dispute between the parties which was pending for last two years in the civil court. Under these circumstances, therefore, prima facie case is 10 made out by the Applicants for grant of anticipatory bail. In any case, in my view, custodial interrogation is not necessary. Hence the following order:- :ORDER: In the event of arrest of the Applicant Balasaheb Govindrao Rahade and Applicant Shashikant Raoji Shinde in connection with the offence punishable under Section 306 r/w section 34 of the Indian Penal vide CR No.89 of 2009 registered with Wadivhare Police Station, Tal.Igatpuri, Dist. Nashik., they be released on bail in the sum of Rs. 10,000/- each with one or two sureties each in the like amount. Both the Applicants shall co-operate with the police and shall report to the concerned police station intially for a period of one week daily from 14/12/2009 and thereafter once in a month. Both the Criminal Applications are accordingly disposed of. [V.M.KANADE, J]