* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Crl.R.C. Nos.1307 and 1351 of 2005 % 28.08.2009 Crl.R.C. No.1307 of 2005 # D. Vijay Kumar .. Petitioner/Accused Vs. $ State of A.P., rep. by P.P. .. Respondent/Respondent ! Counsel for petitioner : Sri C. Padmanabha Reddy ^ Counsel for respondent: Public Prosecutor <GIST: >HEAD NOTE: ? CASES REFERRED : 1. 2002(2) ALT (Crl) 191(AP) 2. (2009) 1 SCC (Cri) 387 3. 2005 SCC (Cri) 56 4. 2005 (1) ALD (Crl.) 825 (SC) 5. 2002 Crl.L.J. 926(1) 6. 2004 Crl.L.J. 1861 7. 2009(8) SCALE 634 8. (1984) 4 SCC 116 9. (2007) 10 SCC 797 HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.Nos.1307 and 1351 of 2005 COMMON ORDER: Since both these Revisions in Crl.R.C.No.1307 of 2005 and Crl.R.C. No.1351 of 2005 are directed against the orders both dated 19.07.2005 in Crl.M.P.Nos.116 and 115 of 2005 respectively and arise out of the same S.C.No.690 of 2004 on the file of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, they are being disposed of by this common order. 2. The petitioner in Crl.R.C.No.1307 of 2005 is A-1 and the petitioner in Crl.R.C.No.1351 of 2005 is A-3. The petitioners will be referred as A1 and A3 hereinafter. A1 and A3 filed petitions in Crl.M.P. Nos.116 and 115 of 2005, under Section 227 Cr.P.C praying to discharge them for the offences punishable under Sections 306 and 506 IPC respectively. The learned V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, by separate orders dated 19.07.2005 in S.C. No.690 of 2004 dismissed those petitions. Aggrieved by the same, they have preferred these revisions. 3. The brief facts of the case are as follows: The deceased Smt. Sangeetha Sharma, aged about 33 years, was a practising Advocate in A.P. High Court, Hyderabad. She was married to one Pramod Kumar Sharma of Akola (Maharashtra) in the year 1982 and was blessed with a son Nitesh Sharma, who was aged about 14 years by the date of the unfortunate incident. It appears that differences arose between the deceased and her husband and she had obtained divorce from her husband through the Family Court, Secunderabad in the year 1988 and she was staying with her parents along with her son. The father of the deceased by name Bhiharilal Sharma is working as General Manager in Alluminium India, Secunderabad. His son Sunil is doing business at Bangalore. Master Nitesh Sharma was studying 10th class during relevant period. The deceased, after completion of LLM Course, started practise as junior Advocate initially in the office of Sri Challa Kodandaram. Subsequently she joined the office of A-1. A-2 and A-3 were also working as juniors under A-1. The deceased worked as junior Advocate in the office of A-1 from 23-06-1999 to 22-12-1999. The deceased was also owning a flat bearing No.304, Gandham Plaza Apartments, Chinna Thokatta, New Bowenapally, Secunderabad. 4. It is alleged that though A-1 treated the deceased well initially, later on he started making sexual advances towards her and proposed to her to be his mistress and to develop sexual relationship with him. It is also alleged that he had promised her to secure the post of Assistant Government Pleader by virtue of his prospective elevation to the post of Judge of High Court of Andhra Pradesh. He had also asked the deceased to provide her flat to him for organizing weekend parties and other immoral activities. He had also demanded her to give money on one occasion. It is further alleged that A-3 also pressurised her to accept the proposal of A1. It is further alleged that A-1 threatened the deceased not to disclose his attempts to anybody, otherwise he would kidnap her and her son. It is also alleged that on 24-12-1999, A-3 threatened the deceased over telephone to accept the proposal of A-1 failing which they would kidnap her and her son or cause harm to her parents. He had also wanted her not to take any action against them. The further case of the prosecution is that the deceased informed about the harassment of the accused to her parents and her brother and her family friends P. Vijaya Kumar (LW-25), P. A. Kamaleswari, Advocate (LW-8), T. Suresh Babu (LW-12), Hon'ble Sri Justice S. Parvatha Rao (LW-14), A. Venkata Sai Prasad (LW-15) and Gomaram Bitchapathi Reddy, Lecturer, Law College, (LW-16). When Smt. P.A. Kamaleswari took the deceased to Smt. Kalpana Kannabiran (LW-9), Sri K.G. Kannabiran (LW-10) and Smt. Vasantha Kannabiran (LW-11), Smt. Kalpana Kannabiran and Smt. Vasante Kannabiran, who were the President and Advisor of ASMITHA (Resource Centre for Women), advised the deceased to give a written complaint. Then a written representation was sent to Sri E. Yalla Reddy, Chairman, Bar Council of A.P., Hyderabad. Hon'ble Sri Justice S. Parvatha Rao also advised the deceased to give a complaint to the Bar Council and to the police. The deceased had also orally informed Sri C.V. Mohan Reddy, Advocate about the harassment by some male advocates who in turn sent his junior Sri T. Praveen, Advocate, to accompany the deceased and identify them, but the said Advocates, who harassed the deceased, were not found. On 27-12-1999, the deceased had written letters to the Chairman, Bar Council of India and Sri E. Yalla Reddy, Chairman, Bar Council of Andhra Pradesh. The deceased also executed an affidavit, but those letters and affidavit were not posted. On 14-06-2000 at about 2-00 PM, one Sri T. Suresh Babu met the deceased at her residence and she informed him that she wanted to seek change of her enrollment from the Bar Council of Andhra pradesh to the Bar Council of Bangalore and also expressed her willingness to reside with her brother at Bangalore. On 14-06- 2000, the deceased went to her flat at new Bowenapally and removed the Advocate mark sticker in the presence of one Yanamala Mahalaxmi. On 14- 06-2000, she did not take her supper and informed her mother that she was not well. She went to bed at about 10-00 PM. At about 2-30 hours in the intervening night of 14/15-06-2000, the deceased woke up her mother and told her that she consumed baygon spray (poison) to commit suicide as she was unable to bear with the harassment of A-1 to A-3. She also informed that she received telephone calls that if she did not consider the demand of A-1, she would be kidnapped in the intervening night of 14/15.06.2000. She had also requested her mother to take care of her son and fell unconscious. She had also left suicide note and a diary (red colour) mentioning the names of the persons who harassed her. 5. Then Jambavanthi Sharma, the mother of the deceased along with the son of the deceased Master Nitesh Sharma and P. Krishna Kumar (LW-7) shifted the deceased to the Yashoda Hospitel, Somajiguda, Hyderabad, where it was declared by the doctor that the deceased was brought dead to the hospital. 6. On the complaint given by the mother of the deceased, the Police, Market Secunderabad, registered a case in crime No.173 of 2000 for the offence punishable under Section 306 of IPC. He held inquest over the dead body of the deceased and conducted observation panchanama at the scene of offense. He then secured the photographer who had taken the photoes of scene of offence. He had also seized the material objects like Baygon Spray tin, steel tumbler, steel spoon, scribbling pad containing the suicide note, blue colour pen and the read diary from the scene of offence in the presence of Lws.24 and 25. The postmortem examination was conducted over the dead body of the deceased and the viscera was sent to the FSL, Hyderabad. The Assistant Director of FSL examined the Baygon Spray and gave his opinion. The chemical analyst opined that the cause of death of the deceased is due to consuming Baygon Spray (insecticie) poison. 7. Thereafter, the then DSP, Sri J. Venkaiah, conducted further investigation. He had collected the letter, dated 27-12-1999 addressed to the Chairman, Bar Council of India and another letter addressed to the Chairman, Bar Council of A.P., and affidavit prepared by the deceased. Subsequently, the CID branch took up investigation as per the orders of the Director General and Inspector General of Police, Hyderabad vide orders in C.No.2712/C-1/2000, dated 11-07-2000. Subsequently the investigation was entrusted to A.V. Subba Reddy, the then Deputy Superintendent of Police, CID, SDT-II, Hyderabad. The handwriting expert Smt. B. Varalakshmi opined that the handwriting and the signatures contained in the questioned documents i.e., suicide note, red diary, letters, are identical to those with the admitted signatures of the deceased. 8. A-1 and A-2 were arrested and enlarged on bail as they obtained anticipatory bail. A-3 was arrested and remanded to judicial custody. The police laid the charge sheet against A-1 to A-3 alleging that they harassed the deceased and thereby driven her to commit suicide and thus abetted the commission of suicide by the deceased and therefore they are liable for punishment under Section 306 of IPC. 9. The accused filed W.P.No.11024 of 2000 to quash the FIR but the same was dismissed. However, A2 filed Criminal Petition No. 846 of 2002 to quash the proceedings and this Court by order dated 15.04.2002 allowed the said petition and quashed the proceedings against A2. 10. A-1 filed Crl.M.P.No.116 of 2005 and A-3 filed Crl.M.P.No.115 of 2005 before the lower Court seeking to discharge them for the charges levelled against them. Since the petitions filed by A-1 and A-3 to discharge them for the offences under Sections 306 and 506 IPC respectively were dismissed vide impugned orders, the present Revision Cases have been filed. 11. The learned Sessions Judge opined that there is a prima facie case to proceed against the petitioners and the question whether the harassment caused to the deceased abetted her to commit suicide or not has to be decided at the time of trial. 12. Sri C. Padmanabha Reddy, the learned Senior Counsel, appearing for the petitioners submitted that there is no direct evidence to say that the Accused abetted the deceased to commit suicide. It is further submitted that the deceased was making allegations not only against male advocates, but also against female advocates, which show that she was mentally imbalanced. It is also his submission that the name of A-3 was not mentioned in the suicide note and there is no material to connect A-3 with the alleged offence. It is also submitted that this Court on the earlier occasion, while dealing with the petition filed by A-1 and A-3 under Section 482 of Cr.P.C., in Crl.M.P. No.2216 and 2226 of 2002 in common order dated 13.10.2004, observed that continuation of criminal proceedings against A-3 for the offence under Section 306 of IPC amounts to abuse of process of the Court and therefore, the proceedings against him for the offence relating to Section 306 of IPC are liable to be quashed. However, it was further observed that the prosecution of A-3 for the offence under Section 506 of IPC could be continued. His main submission is that when no charge sheet is filed against A-3 for the offence under Section 506 of IPC the observation of this Court that the prosecution of A-3 for the offence under Section 506 could be continued is a mistake of fact. It is further submitted that the deceased did not mention about the alleged threatening phone calls said to have been made by A3 to her mother or in her suicide note and that the statements made by the other witnesses that the deceased informed them about the harassment by the Accused are inadmissible in law since those statements are hearsay evidence. It is further argued that only such statements which reveal the cause of death are admissible in evidence. 13. In support of his contentions, the learned senior counsel relied on S. REKHA PRASAD v. STATE OF A.P. [1], SOHAN RAJ SHARMA v. STATE OF HARYANA [2],RANDHIR SINGH v. STATE OF PUNJAB [3] and JAYENDRA SARASWATHI SWAMIGAL v. STATE OF TAMIL NADU [4]. 14. It is also his submission that the allegations made in the charge sheet do not disclose any offence under Section 306 of IPC against A1 and also under Section 506 IPC against A3 and that there are no sufficient grounds to presume that A1 and A3 committed the alleged offences. It is further submitted that the complaint, suicide note and the statements of the witnesses do not disclose any prima facie case to proceed against the petitioners. It is further submitted that the proceedings against A- 2 were quashed by this Court and on same analogy, A-1 and A-3 are also entitled for the benefit and entitled for discharge. 15. The learned Public Prosecutor submitted that at the stage of framing of the charges, the Courts are not expected to analyse the evidence and it is sufficient if a prima facie case is made out from the charge sheet allegations. It is further submitted that the statements of the witnesses, the earlier complaint prepared by the deceased, suicide note and the statements made by the deceased just prior to her death are relevant, admissible and disclose a prima facie case against the petitioners. It is further submitted that merely because the proceedings have been quashed against A-2 that does not mean that there is no material to frame charges against the other Accused. It is further submitted that when the A-3 himself filed petition to discharge him under Section 227 of Cr.P.C., the earlier observation of this Court that the proceedings against A-3 have to be quashed, for the offence under Section 306 IPC would become irrelevant. 16. In the light of the rival contentions, the point that arises for consideration is whether a prima facie case has been made out against A1 and A3 on available material to frame charges against them for the offences under Sections 306 and 506 IPC respectively or whether they are entitled for discharge? 17. The statements of the witnesses recorded under Section 161(3) Cr.P.C and the documents filed along with the charge sheet reveal as follows: Smt. Jambavathi Sharma, the mother of the deceased, stated that the deceased informed her about the harassment made by A-1, A-2 and others. She further stated that on the date of incident at about 8-30 PM, the deceased went to her flat and returned at about 9-30 PM and refused to take dinner on the pretext that she was not feeling hungry and then herself and the son of the deceased slept and that at about 2-30 AM, the deceased came to her bedroom, fell upon her and hugged her. Then the deceased requested her mother to excuse her and further told that she was not going to live any more as she had consumed poison since she was unable to bear with the harassment of the Advocates A1 and A2 and others and asked her to take care of her son. The statement of the doctor P. Ananda Kumar reveals that he was the family doctor of the deceased and that the deceased was intelligent and absolutely normal and that he never noticed any kind of mental depression in her. The deceased died on the intervening night of 14/15-06-2000. The letters, dated 27-12-1999 addressed to the Bar Council of A.P. and Bar Council of India and affidavit reveal that the deceased herself stated that A-1 wanted to have sexual relationship with her and also asked her to be his keep and to give her Flat No.304 to him for conducting week end parties. He had also promised that he would make her AGP in future. She had also stated that she was very much shocked to listen to all those things. She had also stated that A-3 also wanted her to accept the proposal of A-1 and further threatened that they had high political influence and that they would kidnap her and her son and cause harm to her parents if she revealed their acts to others. 18. In the suicide note, dated 14-06-2000, the deceased had stated that: “I, B. Sangeeta committing suicide because of D. Vijay Kumar, Advocate (A1), Rekha Prasad (A2) and other Advocates. They harassed me in such a way that I had left no option except to commit suicide. This requires CBI inquiry. All the names are written in red diary and all my property is legally entitled to my son.” 19. Of course in the read diary there are several names including the names of some women advocates. Merely because there are some names of women Advocates in the diary, it does not mean that the deceased was mentally imbalanced or that entire prosecution case is false. The above referred prosecution evidence can be divided as follows. 1. Statements said to have been made by the deceased to the several witnesses with regard to the harassment caused by the accused; 2. The written representations and affidavit said to have been prepared by the deceased with regard to the harassment of the Accused; 3. The suicide note said to have been written by the deceased in a notebook; 4. The statement of the deceased, after consuming poison, said to have been made to her mother. 20. The police basing on the above referred material alleging that A-1 to A-3 committed the offences punishable under Section 306 of IPC filed charge sheet against the accused. Now let us examine what are the ingredients of Section 306 IPC. Section 306 of IPC reads as follows: Sec. 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 extent to ten years, and shall also be liable to fine.” 21. In a case under Section 306 of IPC, the person, who committed suicide, cannot appear before the Court and explain the circumstances under which he or she committed suicide. Whether there was abetment to commit suicide or not has to be gathered from the relevant circumstances such as statements, letters or complaints or representations or suicide note of the deceased which reveal the cause of death or the circumstances of the transactions which resulted in his/her death. Criminal Intimidation is punishable under Section 506 IPC. Criminal intimidation is defined under Section 503 IPC which is as follows. “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.” 22. Now it has to be seen whether there is any material to frame charges under Sections 306 and 506 IPC against A1 and A3 respectively or whether they are entitled for discharge. 23. Chapter-XVIII of Cr.P.C deals with the trial before a Court of session. Section 226 of Cr.P.C. Envisages that when the Accused appears or is brought before the Court, the prosecutor shall open his case by describing the charge brought against the accused and state by what evidence he proposes to prove the guilt of the accused. Section 227 of Cr.P.C. deals with the discharge, which reads as follows: S. 227. 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. 24. Therefore, Section 227 Cr.P.C. Envisages that the Judge has to consider the record of the case and the documents submitted therewith and the submissions of the accused and the prosecution, and upon consideration of that material, if the Judge comes to the conclusion that there is no sufficient ground for proceeding against the Accused, then he may discharge the Accused. The meaning of the words “There are no sufficient grounds” is that the Judge should come to a conclusion that there is no legal and acceptable evidence or that the allegations do not make out any offence at all. It means that the Judge should come to a conclusion that even when the entire case of the prosecution is accepted as correct or the statements made by the witnesses are considered as true, the Accused cannot be convicted on such material and no case is made against the Accused. 25. The Judge has to consider the broad probabilities of the case and decide whether or not a prima facie case has been made out against the accused or not. The Judge is not required to consider the evidence meticulously at this stage. Thus the charge has to be framed where the available material discloses the commission of the offence, which means the charge should not be framed in the cases wherein the material on record does not disclose the ingredients of the offence charged. The standard of test, which is required to be applied at the time of appreciation of evidence while making a judgment should not be applied at the stage of deciding the matter under Section 227 of Cr.P.C. The concept of giving benefit of doubt does not arise at this stage. Similarly whether the prosecution witnesses are interested or reliable does not arise at this stage. What is to be seen is whether a prima facie case from the material on record has been made out or not. 26. In the light of the above well settled principles, the contentions of the accused and the prosecution in this case have to be examined. The main contention of the learned counsel for the Accused is that the statements made by the deceased are inadmissible therefore we have to see whether the statements said to have been made by the deceased either oral or written are admissible under Section 32(1) of the Indian Evidence Act or not. Section 32(1) of the Indian Evidence Act is as follows. “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 27. The learned Senior Counsel argued that the statements said to be made by the deceased do not relate to the cause of her death hence inadmissible. He has relied on the judgment in the case INDERPAL v. STATE OF M.P. [5], in support of his contention. 28. In the above referred case, the deceased had written letters that her husband had subjected her to beating. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she sustained burns accidentally from a stove. In the above circumstances the Supreme