1 brg.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. CRIMINAL REVISION APPLICATION NO. 40 OF 2011 Ms.Lovina Pankaj Bhatia, Aged 25 years, Occ: Self employed, Presently residing at E-220, Shri Pushpanjali, Vaswani Marg, Near 7 Bungalows Bus Depot, Seven Bungalows, Andheri (West), Mumbai- 400 053. ... Applicant. V/s. 1. Central Bureau of Investigation Special Crime Branch, A/2 Wing, 8th floor, C.G.O.Complex, C.B.D., Belapur, Navi Mumbai. 2. State of Maharashtra. ... Respondents. A.P.Mundargi, Senior Advocate with Niranjan Mundargi for the applicant. D.N.Salvi, Special Public Prosecutor for respondent No.1. S.S.Pednekar, APP for respondent No.2- State. CORAM: B.R.GAVAI, J. DATED : 12th August 2011. 2 brg.doc JUDGMENT : Rule. Rule is made returnable forthwith. Heard by consent of parties. 2. The facts in brief giving rise to the present application are as under: 3. On 6th February 2008 one Shri Kunal Singh Jamwal had committed suicide by hanging on fan in his house. Since no criminal case was registered by the Oshiwara Police Station after the deceased had committed suicide, the father of the deceased, namely, Rajinder Singh Jamval filed a Criminal Writ Petition No.1576/2008 before this Court. It appears that during the pendency of the said petition, an F.I.R.No.36/2009 came to be registered by the Oshiwara Police Station under section 302 of Indian Penal Code (I.P.C.). The investigation was also transferred to Mrs.Kalpana Ghadekar of Versova Police Station. Applicant was arrested in connection with the said F.I.R. on 23rd November 2009 and was remanded initially to the police custody and subsequently to the Magisterial Custody. Applicant was, subsequently, granted bail on 22nd February 2010 on certain conditions. This Court, vide its order dated 17th December 2009 transferred the investigation to the respondent No. 1- Central Bureau of Investigation (C.B.I.) After 3 brg.doc the completion of investigation, a charge-sheet for the offence punishable under section 306 of I.P.C. came to be filed before the learned Sessions Court. The applicant filed an application for discharge before learned Sessions Court. The same came to be rejected. Hence the present revision application. 4. The case of the prosecution, in nutshell, as could be gathered from the charge-sheet and reply filed by the C.B.I., is thus: 5. That deceased Kunal Singh Jamval, who was an Actor by profession had acted in Hindi as well as Tamil movies. He had come to Mumbai in the year 2005 on the invitation of one Shri Balagiri, the Proprietor of M/s.Siddhesh Films, Mumbai and joined as C.E.O. in the said firm. That the said Kunal was entrusted with the acquisition of land at Panvel and Karjat talukas in Raigad district. That the said Kunal was in acquaintance with the present applicant. He had decided to produce a film named “YOGI”; wherein he decided that he would act as Hero and the present applicant would act as Heroine. It is alleged that various meetings used to take place at his home in connection with the said film. It is further case of the prosecution that due to this said Kunal and the applicant came close to each other. It is their case that, however, at times the applicant used to avoid him. It is the case of the 4 brg.doc prosecution that on 6th February 2008, there was a fight between the present applicant and the deceased, as a result of which, he committed suicide. It also appears to be the case of the prosecution from the charge-sheet, that just prior to the commission of suicide the deceased had serious altercations with the applicant and the applicant had locked herself in the bathroom. According to the prosecution, the loneliness that was prevailing at that point of time abetted the deceased to commit suicide. 6. Shri Mundargi, learned senior counsel appearing for the applicant submits that even, according to the respondent- C.B.I., the case is of suicide and not of homicide. He submits that taking the entire prosecution material on its face value, still it is not sufficient to bring home the guilt of the accused under section 306 of I.P.C. The learned counsel relies upon the judgment of the Apex Court in the case of Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628 and in the case of S.S.Chheena v. Vijay Kumar Mahajan, 2010 ALL MR (Cri.) 3298 (SC). 7. Shri Salvi, learned Special Public Prosecutor, on the contrary submits that the present case is a case of circumstantial evidence. He submits that if the entire circumstances are taken 5 brg.doc into consideration, the conclusion that can be drawn will be against the accused. Mr.Salvi relies upon the following circumstances: (i) the report from All India Institute of Sciences that the death of the deceased is suicide; (ii) that there was extra marital relationship between the deceased and the applicant; (iii) that there was strained relationship between the deceased and his wife; (iv) that there was an evidence to show that about an hour before the suicide, the deceased was in good and happy mood as could be seen from the evidence of the costume designer; (v) that the deceased had sent a message to the Music Director fixing a meeting with regard to the movie; (vi) that from the statement of Aishwarya, it is evident that the applicant had made extra judicial confession that she was responsible for the death of the deceased; (vii) that in the statement of Aishwarya, it has also come on record that there was a fight between the deceased and the applicant. 8. The learned Special Public Prosecutor further relies on the provision of Section 106 of the Evidence Act and contends that since what has happened prior to the death of the deceased was exclusively within the knowledge of the applicant, it is for the applicant to establish the same at the stage of trial. He submits that at this stage what is to be seen is prima facie case for framing charges and nothing more. 6 brg.doc 9. I will first deal with the contention of the non-applicant regarding section 106 of the Evidence Act. 10. The Apex Court in the case of State of West Bengal v. Mir Mohammad Omar, 2000 Cri.L.J. 4047 has observed thus: “36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” 11. The Division Bench of the Madras High Court in the case of Ahluvaliya and others v. State of Inspector of Police, 1995 Cri.L.J. 3511 has observed 7 brg.doc thus: “24. ......... Under S. 106 of the Indian Evidence Act, if any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The principle underlying S. 106 is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the party concerned. The first exception to this general rule is when there is a presumption either of fact or of law one way or the other, then arises the second exception embodied in S. 106. If a fact is within the special knowledge of a party, it is futile to force the other party to prove it. Such proof can be affirmative or negative in character. We are aware that S. 106 is certainly not intended to relieve the prosecution of its initial onus. On the contrary, it is designed to meet certain exceptional cases, in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which were specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. It is not the law of the country, that the prosecution has to eliminate all possible evidence and circumstances which may exonerate him. If those facts are within the knowledge of the accused, then he has to prove them. To reiterate the prosecution has to establish a prima facie case, in the first instance. It 8 brg.doc will not be enough to establish facts, which give rise to suspicion and then by reason of S. 106 of the Evidence Act, throw the onus on the accused to prove his innocence......” I am in respectful agreement with the view taken by the Division Bench of the Madras High Court. It can clearly be seen that it has been held that at the first instance it is the duty of the prosecution to establish a prima facie case. It will not be enough to establish facts, which give rise to suspicion and then by reason of section 106 of the Evidence Act, throw the onus on the accused to prove his innocence. As such, it will have to be first seen as to whether the prosecution has established prima facie case so as to bring home the guilt of the applicant for the offence punishable under 306 of I.P.C. I am aware of the limitation of this Court while considering question as to whether the applicant needs to be discharged or not. At this stage, it will not be permissible for this Court, to go into the question regarding truthfulness or otherwise of the evidence of the prosecution. The only limited enquiry that would be permissible is as to whether, taking the prosecution case at its face value the prosecution is in a position to establish the guilt of the accused for the offence charged with or not. 9 brg.doc 12. In the case of Madan Mohan Singh (cited supra), the petitioner was working as a DET in Bharat Sanchar Nigam Ltd. The deceased i.e. Deepakbhai Krishnalal Joshi had committed suicide. On the basis of complaint filed by his wife, an FIR came to be registered. The petitioner had applied for discharge. The trial Court rejected it. The Gujarat High Court upheld the order of the trial Judge. Being aggrieved thereby the petitioner has approached the Apex Court. The prosecution heavily relied on the suicide note of the deceased wherein it was stated that the petitioner was responsible for his death. The Apex Court negating the contention on behalf of prosecution observed thus:- “10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. 11. In spite of our best efforts and microscopic examination of the 10 brg.doc 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 even 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. 12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note. 13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, 11 brg.doc abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306 IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Duta v. State of W.B., this Court had quashed the proceedings initiated against the accused. 14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. 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 12 brg.doc superior officer even to work.” (emphasis supplied) 13. In the case of S.S.Chheena , there was a dispute between one Saurav 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 train. A suicide note was seized from the 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: 13 brg.doc “27. This Court in Chitresh Kumar Chopra v. 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 self- esteem and self-respect. 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. 28. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 29. In the instant case, the deceased was undoubtedly 14 brg.doc hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. 30. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside.” (emphasis supplied) 14. It can, thus, be clearly seen that for proceeding further with the trial against the accused for an offence punishable under section 306, it is necessary for the prosecution to at least, prima facie; establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under section 15 brg.doc 306. As held by the Apex Court, an abetment involves mental process of instigating the person or intentionally aiding the person for doing of a thing. Without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said person cannot be compelled to face a trial. Unless there is a material on record to show clear mens rea to commit the offence or an active act or direct act of the accused which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the accused under section 306 cannot be permitted. 15. Applying this test, we will have to examine as to whether the prosecution is in a position to prima facie establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. I will have to examine whether the prosecution is in a position to prima facie point out any positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide. The prosecution will have to, prima facie; establish the clear mens rea to commit the offence or an active or direct act which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position that he committed suicide. 16. The prosecution has heavily relied on the 16 brg.doc statement of one Aishwarya Sakhuja,who was sharing an accommodation with the applicant. Her statement under section 164 of Cr.P.C. has been recorded. The relevant part of her statement reads thus: “On 6th Feb, 2008, I had day's off from my shooting. Since I had been working continuously I had had a very little rest. Plus as a part of our shooting I was exposed to the smoke of “Lobhan”. I had been feeling unwell. Plus, I had to attend to so many small things like shopping for food items, certain other basic items and most of all, go to a beauty parlour. It had been some time and I had to go the beauty parlour, for some basic grooming. And anyways the pace of my moving around was slowed down by my tiredness and illness. In between, I had come back to my flat, around 4-4.30 p.m., when, I had to keep certain things, which I had purchased, at home. At that time, Bhatia uncle was not at home. I returned may be around 8.45 or 9.00 pm or so. It was around 15 minutes or so after my return that uncle got a call on his cell. I was just asking him general questions out of courtesy because I was very tired and I wanted to go to my room and sleep. Uncle was sitting at some distance from me in the hall, but the caller which I could make out clearly was Lovina, was hysterical. I could hear her voice on the phone. Suddenly uncle started wearing socks. He looked panicky. I asked him what had happened. He replied that Lovina and Kunal had gotten into a fight. I 17 brg.doc asked where was it, outside our house. He replied no, it was at Kunal's place. He told me that Lovina had gone to Kunal's place for some meeting with the stylist for the movie which they were doing. Then I asked him where is Kunal's place, he replied Windermere. Then I said that since Lovina sounded very hysterical do you want me to come and pacify her, do you need any help. He told me “Beta agar aa sakte ho to aajao”. I had not even remove my shoes. I went out with him, he hired a autorickshaw. In the auto rickshaw I asked him actually what had happened. He told me that Kunal has hanged himself. We got down at the gate of Windermere, uncle threw the money at the auto driver and we ran inside the building. I would have taken us around 3 to 5 minutes to get into an auto and reach the gate of Windermere. We ran inside the building and reached on the first floor by stairs. I followed Sh. Bhatia on the first floor. As uncle was about to press the door bell Lovina opened the door. Tears were streaming down her cheeks. She was crying very very loudly, she was almost screaming. Uncle asked her to calm down. She was saying words like “Woh mar gaya, who mar gaya, main kya karu”. Uncle kept on asking her “Hua kya, hua kya”. They were speaking in Hindi. To that she replied “Main bathroom, main bathroom”. She was not speaking coherently because she was saying a few words but her words were being muffled by her sobs. Uncle told her that “Thik hai beta, jab police aayegi unhe yaahi bolna”. I just looked on my right and I saw 18 brg.doc Kunal hanging from the ceiling fan with a abed sheet. His mouth was open, his tongue was protruding, there was saliva dripping from his mouth. Though I had met him may be three four times, it was a very shocking scene for me. I had never seen something like that in my life before. I still get panicky when I remember that scene. As far as I remember,