cran2213.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2213 OF 2010 The State of Maharashtra Through Police Station Officer Police Station, Karmad Tq. and district Aurangabad ...Applicant Versus 1 Kishan s/o Sandu Kakade Age 38 years, Occ. Agriculture R/o. Shevga, Tq. and District Aurangabad 2 Ashok s/o Sandu Kakade Age 40 years, Occ. Agriculture R/o. Shevga Tq. and district Aurangabad ...Respondents ..... Mr. A.D. Rakh, A.P.P. for the applicant-State Mr. S.S. Panale, advocate for respondents ..... CORAM: S. S. SHINDE, J. DATED: 1st FEBRUARY, 2011 PER COURT:- 1 Heard learned A.P.P. for the applicant-State and the learned counsel for the respondents. cran2213.10 -2- 2 This application seeks leave to prefer appeal against the judgment and order dated 8.2.2010 passed by the learned Additional Sessions Judge-4, Aurangabad in Sessions Case No. 111 of 2007 thereby acquitting the accused-respondents from the charges levelled against them for the offences punishable under Sections 306, 504, 506 r.w. 34 of I.P.C. and under sections 33, 34 and 35(A) of the Bombay Money Lending Act. 3 It is the case of the prosecution that deceased Santosh purchased loading rickshaw in February 2005 and while purchasing the same, he fell short of some amount and therefore, he borrowed Rs.50,000/- from respondents. The said amount was borrowed with interest and was also repaid. In spite of that, the respondents were demanding amount of interest from deceased Santosh and on that count, they used to abuse him and used to threaten him of killing. One Mohan Hiraman Rathod, r/o Shevga, was a mediator in the transaction between accused and deceased Santosh. 4 On 16.4.2006, since it was holiday on account of Ram Navmi, first informant Sayaji and his wife Sumanbai had been to Aurangabad to their house. At about 9.30 p.m. P.W.1 Sayaji received a phone call of deceased Santosh informing him that he should visit Shevga Shivar within one hour failing which he would not be able to meet him cran2213.10 -3- (Santosh). First informant Sayaji immediately proceeded on his motor bike and reached Shevga Shivar about 10.30 p.m. On opening the door of the house, he found that, Santosh was hanging to the roof with the help of sari. He immediately examined his pulse and found it little working. He immediately brought down Santosh and called for his relative by name Santosh Gavle on telephone, who visited the said place in his Maroti van. Both of them carried Santosh to Ghati Hospital, Aurangabad. The doctors examined Santosh and declared him dead. 5 The further case of the prosecution is that at the relevant time, Santosh was having 1000 birds in his poultry. Out of it, around 500 to 600 birds were expired due to bird-flue and because of that Santosh was under depression. Both the accused used to visit the house of Santosh and used to demand Rs.50,000/- on account of interest and used to threaten him. They also used to abuse him on the said count. Because of harassment by accused, Santosh committed suicide. In the pant pocket of deceased Santosh two chits, which are in the form of suicidal notes, were also found. 6 Setting out all the above facts, Sayaji Hirekar lodged his report on 7.4.2006, on the basis of which, offence vide crime No. 41 of 2006 was registered by police against both the accused-respondents. cran2213.10 -4- 7 During the course of investigation of said offence, spot panchanama Exh.22 was drawn. Both the suicidal notes were taken charge of under panchanama Exh.23, supplementary statement of Sayaji Hirekar was recorded. Inquest of deceased Santosh was drawn, after completion of his postmortem, postmortem report Exh.25 was secured. Both the suicidal notes and admitted writing of deceased Santosh were sent to Handwriting Expert for his opinion and his opinion Exh.26 was secured. Statements of all relevant witnesses were recorded. The sari, by which deceased Santosh was hanging, was also taken charge. After completion of entire investigation, the charge sheet was filed. 8 After committal of case by the order of learned Magistrate, dated 17.5.2007, the charge Exh.15 was framed and read over against the accused for the offences punishable under sections 306, 323, 504 r.w. 34 of I.P.C. and under Section 33, 34 and 35(A) of Bombay Money Lending Act to which the accused pleaded not guilty and claimed to be tried. Their defence is of total denial and false implication. 9 During the course of trial, the prosecution has examined PW 1 Sayaji Hirekar at Exh.18, who is father of deceased Santosh, PW 2 Mohan Rathod at Exh.28, who is adjoining land holder of deceased cran2213.10 -5- Santosh Hirekar, PW 3 Pawan Khima Chavan at Exh.29, PW 4 Sahebrao Baburao Patil at Exh.31, a Police Head Constable, to whom MLC was handed over to him, PW 5 Mrs. Asha widow of deceased Santosh Hirekar at Exh.33 and PW 6 Suresh Laxman Gawale at Exh. 35, who is relative of PW 1 Sayaji Hirekar and PW 7 Baburao Vishwanath Wakodkar, PSI, at Exh.38, who is investigating officer of the present crime. The prosecution has proved suicidal notes at Exh. 19, 20 and the defence admitted, spot panchanama Exh.22, house/property search and seizure form Exh.23, inquest Exh.24 and handwriting expert opinion Exh.26. The accused in their statements, under Section 313 of the Code of Criminal Procedure, denied all the incriminating circumstances. 10 Learned A.P.P. appearing for the applicant-State submitted that the chits which were recovered from the pocket of deceased clearly mention the name of accused that deceased borrowed money from accused to purchase loading rickshaw and the respondents accused were pressurizing him to return the said amount, therefore, he committed suicide, since he could not repay the borrowed money. According to learned A.P.P. though the amount of Rs.50,000/- was repaid to the respondents accused, still there was demand for interest amount and as a result of which, deceased committed suicide. Therefore, he submitted that the respondents should have been cran2213.10 -6- convicted under Section 306 of I.P.C. 11 On the other hand, learned counsel appearing for the respondents submitted that there were two suicide notes recovered. In one suicide note the deceased had admitted that he was depressed about non payment of loan amount borrowed from one Sant Ravidas Patsanstha. According to counsel for the respondents, suicide note at Exh.19, nowhere reflects any allegations against accused but it reflects borrowing Rs.50,000/- by deceased by one Sant Ravidas Patsanstha. Therefore, the trial court has rightly given benefit of doubt to the accused-respondents. He therefore, would submit that this court may not interfere in the impugned judgment and order of acquittal. 12 I have given due consideration to the rival submissions perused the impugned judgment and also record and proceedings. Upon perusal of the record and proceedings, it clearly reveals that there are two suicidal notes produced on record at Exh. 19 and 20. The suicidal note at Exh.19 nowhere reflects any allegations against the respondent but it reflects borrowing of Rs.50,000/- by deceased Santosh from one Sant Ravidas Patsanstha and had mortgaged his land for the said amount and this aspect is admitted by other prosecution witnesses like one Sayaji Hirekar and P.W.5 Asha. Exh. cran2213.10 -7- 19 also shows that Santosh also depressed about non payment of said loan and had in fact addressed to the Police Commissioner, Aurangabad that if he failed to get compensation on account of his 1000 birds he would commit suicide. Another suicide note at Exh.20, which was in respect of amount of Rs.50,000/- borrowed from the respondent-accused. The trial court has considered the effect of provisions of Section 107 of I.P.C. and recorded findings whether demand of amount of interest to the deceased Santosh by the accused can be equated with abetment defined under section 107 of I.P.C. and answered the said issue in negative. 13 Upon independent scrutiny of the evidence, it can safely be stated that one of the important ingredient to constitute offence of abetment, mens-rea on the part of the accused is of vital importance. However, in the present case, the prosecution failed to prove material brought on record to show the mens-rea on the part of the respondents. That apart, nothing has been brought on record by the prosecution so as to suggest positive action on the part of the respondents accused in demanding the interest amount of Rs.50,000/-, as stated in the said suicide note. It is well settled by this time that to constitute the offence under Section 306 of I.P.C. the prosecution has to bring on record the fact that soon before commission of suicide there is evidence in material particulars, which cran2213.10 -8- only leads to the conclusion to show that it is only because of acts of concerned accused the deceased has committed suicide. In the present case, on perusal of evidence I find that nothing has been brought on record so as to connect the respondents-accused with the events which would connect to the proximity of commission of suicide. On the contrary, the prosecution itself has approached the case with two suicide notes one at Exh.19 and another is at Exh.20. Therefore, the trial court has rightly granted benefit of doubt to the respondents- accused. Hence, no interference is called for. Application seeking leave to prefer appeal against the impugned judgment and order stands rejected. ( S. S. SHINDE. J.) rlj/