criappln2777.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2777 OF 2011 Rashmi w/o Rakesh Burbure age 53 years, occ. service r/o Sambhaji Nagar Society, Aurangabad. .. APPLICANT VERSUS 1 The State of Maharashtra 2 Prabhakar s/o Premdas Shivlekar age 40 years, occ. service r/o Medical Quarter B/1/9 Aurangabad .. RESPONDENTS Mr. S.G. Ladda, advocate for the applicant. Smt. Y.M. Kshirsagar, APP for the State. Smt. S.S. Jadhav, advocate for respondent no. 2. WITH CRIMINAL APPLICATION NO. 3467 OF 2011 Asha Eknathrao Sonawane age 32 years, occ. service r/o Quarter, Medical Hospital & College, Ghati, Aurangabad .. APPLICANT VERSUS 1 The State of Maharashtra through Investigation Officer criappln2777.11 2 City Chowk Police Aurangabad Dist. Aurangabad. 2 Prabhakar Premdas Shivlekar age 40 years, occ. service r/o medical Quarter, B/1/9, Aurangabad Government Medical college & Hospital, Aurangabad. .. RESPONDENTS Mr. R.V. Gore, advocate for the applicant. Smt. Y.M. Kshirsagar, APP for the State. Smt. S.S. Jadhav, advocate for respondent no. 2. ===== CORAM : A.V. POTDAR, J. DATE : 14 th September, 2011 ORAL JUDGMENT : 1 Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2 Both these applications are directed against common order passed on 6-2-2009 by the learned Additional Sessions Judge, Aurangabad who was pleased to reject the application for discharge filed by present applicants and one Ranjana Parashar. As both these applications question correctness and legality of the order impugned, both these applications are disposed of by common judgment. criappln2777.11 3 3 Such of the facts as are necessary for adjudication in this group of applications may be briefly stated as follows : . Deceased Sunita Babanrao Deshmukh was studying / taking training of Diploma in Nursing in Government Medical College, Aurangabad since the year 2001. For her education purpose, she was residing in the hostel of Government Medical College, Aurangabad. Both the applicants and one Ranjana Parashar were working as rector in the hostel where Sunita was residing alongwith other trainee nurses. In the morning of 15-5-2003, Sunita was found dead in room no. 40 of the said hostel. Investigation revealed that she committed suicide by injecting injection Scolin. Accordingly, initially A.D. was registered. It further appears that after about four years, on 5-2-2007, complaint came to be lodged by maternal uncle of Sunita by name Prabhakar s/o Premdas Shivlekar. On the basis of complaint, offence came to be registered at Crime No. 19/2007 in City Chowk police station for offence under section 306 r/w 34 of the Indian Penal Code against both the applicants and one Ranajana Parashar. During investigation, statements of grand mother, brother in law, sisters Anita and Sujata, another brother Raju and parents of deceased were recorded. Statements of other resident girls in the said hostel were also recorded. These statements reveal that both criappln2777.11 4 these applicants and Ranjana used to abuse the students in filthy language about their late reporting in hostel, visitors used to visit them in the hostel and some other things. It appears that one application was filed before the Consultant / Advisor of the SNA unit of Government Medical College, Aurangabad on 14-5-2003 complaining against applicant Rashmi, which is signed by near about 107 students. On completion of investigation, charge sheet came to be filed before the learned Judicial Magistrate, First Class, Aurangabad, who by passing requisite committal order, committed the trial to the court of sessions. It appears that both the applicants and the third rector Ranjana filed application for discharge under section 227 of the Code of Criminal Procedure. By impugned judgment and order dated 6-2-2009, those applications came to be rejected. 4 It appears that the third person i.e. Ranjana questioned correctness of the said order of rejection of discharge application by preferring Criminal Writ Petition no. 618/2009 which was allowed by this court by judgment and order dated 20-1-2001. 5 During the course of submissions across the bar, learned counsel appearing for the applicants took me through the entire charge sheet, criappln2777.11 5 evidence collected during investigation. Learned APP and the learned counsel engaged by the original complainant have also taken me through the entire charge sheet. It is not disputed that the death of deceased Sunita is an un-natural suicidal death. Considering this undisputed fact, question remains for consideration is whether the evidence collected during investigation prima facie discloses abetment at the hands of applicants which forced deceased Sunita to commit suicide. For this purpose, it is necessary to quote section 306 of the Indian Penal code which reads thus : 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. . To constitute an offence under section 306 of the Indian Penal Code more committal of suicide by the deceased / victim is not sufficient unless it is prima facie brought on record that the culprits have abetted the victim to commit suicide. Abetment is defined under section 107 Chapter V of the Indian Penal Code which reads as follows : 107 Abetment of a thing – A person abets the doing of a thing, who - First – Instigates any person to do that thing; or criappln2777.11 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. 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. 6 It is urged across the bar on behalf of the applicants that the alleged incident took place on 15-5-2003. One Vilas Sawant, Asstt. PSI attached to Begumpura police station enquired in the A.D. His statement was also recorded during investigation. Perusal of his statement discloses that on the very next day of the incident, he visited the place of offence. The place of offence i.e. room no. 40 was pointed out by applicant Asha. Thereafter panchanama of the spot of incident was drawn. It further reveals from his statement that at that time i.e. on the very next day of the incident, father of the deceased, Baban Deshmukh, r/o Pimpalgaon, Dist. Jalgaon was present criappln2777.11 7 who identified the dead body in the presence of witnesses. It is curious enough that father of the deceased who lost his beloved daughter just 24 hours ago has not lodged complaint against the present applicants. Statement of the complainant, grand mother, sisters, brother in law of the deceased so also other students residing in the hostel were recorded after a span of about four years. On perusal of these statements, it is nowhere disclosed that because of the torture at the hands of the applicants, life of deceased had become so miserable that she was forced to commit suicide. 7 During the course of submissions across the bar, learned APP vehemently urged that disclosure at the hands of the deceased to her close relatives so also statements of female students who were residing in the hostel at the relevant time, disclose that the these applicants were teasing and taunting to the female students residing in the hostel which caused harassment to them. Application dated 14-5-2003 at the hands of the female students residing in the hostel is part of the complaint. Clear perusal of the averments / allegations in the said application do not indicate that there was teasing and taunting at the hands of the rectors / present applicants with ill motive against the female students / residents of the hostel. Considering this aspect, there is absolutely no evidence that a day criappln2777.11 8 prior to the incident or soon before the incident, the acts of these applicants forced the deceased to commit suicide. Considering this factual aspect, it does not constitute ingredients of section 107 of the Indian Penal Code. In the absence of prima facie evidence about abetment there shall not be an offence of abetment as defined under section 306 of the Indian Penal Code. 8 At this juncture, it is useful to give reference of the observations of the Division Bench of this court in the matter of Govind Sakharam Ubhe vs. State of Maharashtra reported in 2009(3) Bom.C.R. (Cri.) 144 where in paragraph no. 25, principles laid down by the Apex Court in the matter of Niranjan Singh Karam Singh Punjabi vs. Jitendra Bijja reported in AIR 1990 SC 1962 are observed which read as follows : 25 The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of section 227 of the Code, the Court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The Court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court’s enquiry must not be directed to find out whether the case will end in conviction. However, though roving criappln2777.11 9 enquriy is not permissible, the Court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross -examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of section 227 of section 228, the scales as to the guilt or innocence of the accused are even then the Court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then the Court will proceed to frame the charge. But if two views are possible and the Court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the Court will be within its right to discharge the accused. Suspicion has to b strong and grave suspicion leading the Court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the Court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage. . Considering the observations of the Apex Court which speak that at the time of framing of charge evidence collected during investigation need not be evaluated from the angle as to whether it is sufficient to convict or acquit the accused, but the evidence is to be evaluated from the angle whether it prima facie discloses commission of offence to be charged. On evaluation of the evidence collected during investigation, if prima facie it criappln2777.11 10 does not disclose commission of offence, then such are the cases in which the persons arrayed as accused in the criminal case are entitled for discharge. In the instant matter, from the facts on record which were discussed in earlier paragraphs, it is clear that on perusal of the evidence collected during investigation, prima facia, it does not disclose commission of offence of abetment to commit suicide. In the light of this, applicants are entitled for discharge. Both the applications thus succeed. Applicants are discharged from charge under section 306 r/w section 34 of the Indian Penal Code in Sessions Case no. 111/2008. Both the applications are allowed and disposed of accordingly. Rule made absolute. ( A.V. POTDAR ) JUDGE dyb Authentic copy ( Mrs. D. Y. Bhogle ) Pvt. Secy. to the Hon’ble Judge