1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.490 OF 2010 1. Fakirchand Dagduba Ingle Age : 50 years, Occ : Agri., 2. Kasturabai Fakirchand Ingle Age : 45 years, Occ : Household, Both R/o Shirasgaon Ingle, Tq.Bhokardan, Dist.Jalna. ..PETITIONERS -VERSUS- 1. The State of Maharashtra (Copy to be served on public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad). 2. The Police Inspector, Hasnabad Police Station, Tq.Bhokardan, Dist.Jalna. 3. Lahu Bhika Ingle Age : 40 years, Occ : Agri., R/o Shirsasgaon Ingle, Tq.Bhokardan, Dist.Jalna. ..RESPONDENTS ..... Mr.V.S. Kadam, advocate for petitioners. Mrs.B.R. Khekale, A.P.P. for respondent nos.1 and 2. Mr.S.B. Joshi, advocate for respondent no.3. ..... (CORAM : SHRIHARI P. DAVARE,J.) DATE : 26th July, 2010. 2 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of learned counsel for respective parties, the matter is taken up for final hearing. 2. By the present petition filed by petitioner nos.1 and 2 under Articles 226 and 227 of the Constitution of India and also under Section 482 of the Code of Criminal Procedure, petitioners prayed that F.I.R. bearing C.R. No.35/2010 registered with Hasnabad Police Station on 19th April, 2010 under Sections 376, 306, 504, 506 and 34 of the Indian Penal Code qua the petitioners, be quashed and set aside. After filing the present Petition, interim relief was granted in favour of petitioners in terms of prayer clause `E' by this Court on 06th May, 2010 until further orders. FACTUAL MATRIX : 3. The petitioners contend that they are original accused in C.R. No.35/2010 registered with Hasnabad Police Station under Sections 376, 306, 504, 506 and 34 of the Indian Penal Code and the F.I.R. came to be registered on 19th April, 2010 by respondent no.3 herein (original complainant) against them alleging that son of petitioners namely, Ganesh has committed rape upon deceased Rekha on 17th April, 2010, who was daughter of respondent no.3. It is also alleged that petitioners came from Pune to their village Shirasgaon Ingle, Post Shirasgaon, Tq.Bhokardan, Dist.Jalna and thereafter went to the house of present complainant and stated to deceased Rekha on 19th April, 2010 that she must die consuming poison. It is also alleged that deceased Rekha could not sustain humiliation by the said utterances and consumed poison and committed suicide on the same day i.e. on 19th April, 2010. Hence, F.I.R. came to be lodged by respondent no.3 against petitioners herein with Hasnabad police Station, 3 Dist.Jalna and same came to be registered under C.R. No.35/2010 on the same day. Being aggrieved by the said filing of F.I.R. petitioners have moved this Court for quashing the said F.I.R. contending that the said F.I.R. is frivolous and vexatious. SUBMISSIONS :- 4. Heard Mr.V.S. Kadam, learned counsel for petitioners as well as Mrs.B.R. Khekale, learned A.P.P. for respondent nos.1 and 2 and Mr.S.B. Joshi, learned counsel for respondent no.3. 5. Learned counsel for petitioners canvassed that petitioners have not committed any alleged offence as alleged in the said complaint. It is further canvassed that even if the allegations in the complaint are taken as it is, the allegation that present petitioners have said deceased-Rekha to consume poison and die, does not constitute an offence of instigation as alleged. Learned counsel for petitioners also argued that petitioners' son namely Ganesh and deceased Rekha were having love affair since long and family members of Rekha did not approve the same. Moreover, it is also submitted that deceased Rekha wrote many love letters to Ganesh, and therefore, act committed by Ganesh with Rekha was with the consent of deceased Rekha and deceased Rekha's brother Prakash witnessed the said incident, which could not be tolerated by deceased Rekha, and therefore, she committed suicide by consuming poison. Learned counsel for petitioners further submitted that the complainant has filed said false complaint against whole family members of petitioners and complainant roped all the family members in the said crime. 4 6. According to learned counsel for petitioners, even if it is assumed without admitting that the alleged incident occurred on 17th April, 2009, no complaint was filed in that respect immediately on 17th April, 2009 and alleged complaint came to be filed after lapse of two days i.e. on 19th April, 2009, which is suspicious and concocted. Moreover, learned counsel for petitioners relied upon the observations made in the case of "Sanju alias Sanjay Singh Sengar V/s State of M.P. reported in "AIR 2002 SUPREME COURT 1998", wherein it is observed in respect of proof of abetment of suicide in the quarrel between accused and deceased wherein accused telling deceased `to go and die', but that itself would not constitute ingredient of `instigation', since presence of mens rea is necessary concomitant of instigation. Moreover, fact that deceased committed suicide after two days of quarrel during which said words were uttered by accused, which would show that suicide was not direct result of quarrel. Moreover, suicide note left by deceased showing that he was in great stress and depression. So also, the statement by his wife that he was frustrated man and was in habit of drinking, and therefore, held that charge-sheet framed under Section 306 of the Indian Penal Code against accused was liable to be quashed, as ingredients of abetment were totally absent. 7. Relying upon the aforesaid observations, learned counsel for petitioners submitted that even from plain reading of contents of F.I.R. it does not disclose the means rea against petitioners herein in respect of alleged offences, and therefore, the F.I.R. deserves to be quashed and set aside. 5 8. Learned counsel for respondents opposed the present Petition vehemently and respondent no.3 has filed affidavit in reply and thereby countered avernments and contentions made by petitioner in present Petition and stated that respondent is a illiterate, rustic villager and father of the deceased Rekha, who is a victim of most heinous crime of rape which has been committed by son of petitioners-Ganesh. It is submitted that subsequent to the disclosure of the incident of rape, petitioners had big scuffle with the family of present respondent infront of entire village and petitioner no.2 directed deceased Rekha to consume poison and die, and therefore, deceased Rekha felt ashamed and devastated due to the quarrel and comments made by petitioners, and hence, she consumed some insecticide, which resulted into death of deceased Rekha for which the petitioners and their son are responsible. It is also stated in the said affidavit in reply that the petitioners not only had verbal quarrel, but also they threw stones at the house of respondent and slapped the father of respondent who is 91 years old. This entire incident had deeply affected the mental condition of the deceased Rekha which resulted into her death. The said affidavit in reply further recites that unless and until the investigation is completed, truth can not come out whether the petitioners are responsible for the death of Rekha and whether the son of petitioners has committed rape on her, and therefore, the interim relief granted in favour of petitioners staying investigation deserves to be vacated and present Petition requires to be dismissed. It is further submitted that petitioners are influential and rich persons and they may tamper with the evidence and pressureise the witnesses. 6 9. Learned counsel for respondents urged that there are nearly about 7 witnesses to the occurrence of incident of 19th April, 2010 including Latabai Ingle, Narmadabai Ingle, Pandit Ingle and Ankush Ingle. By which the victim Rekha was humiliated, which resulted in to committal of suicide by her. Learned counsel for respondents further submitted that the mental condition of deceased Rekha was disturbed due to rape committed by Ganesh i.e. son of petitioners on 17th April, 2010 and thereafter, petitioners herein have on 19th April, 2010 told said Rekha by giving threats that she should consume poison and die, and therefore, she consumed the poison and committed suicide. It is submitted that petitioners and their son are the responsible persons for committal of suicide by deceased Rekha. Learned counsel for respondents also canvased that there is remedy open to petitioners to file application for discharge after completion of investigation, if there is no evidence collected against petitioners, and therefore, present Petition deserves to be dismissed. CONSIDERATION :- 10. I have perused the contents of F.I.R. dated 19th April, 2010 and investigation papers and also considered the submissions advanced by learned counsel for the parties anxiously, as well as considered the observations made in the aforesaid Ruling and after considering the rival submissions advanced by both the sides, it is apparently clear from the F.I.R. dated 19th April, 2010 that alleged offence is divided into two parts i.e. first incident allegedly occurred on 17th April, 2010 at 7 about 14.30 hours when Ganesh i.e. son of petitioners allegedly committed rape upon victim Rekha i.e. daughter of respondent no.3 and, second incident allegedly occurred on 19th April, 2010 at about 11 a.m. when petitioners herein went to the house of respondent no.3 and when Rekha was alone in the house abused her and threatened her and asked her to consume `Aushad' and die, and thereupon she consumed poisonous substance and committed suicide on the same day. The contents of the F.I.R. reveal that petitioners herein went to the house of respondent no.3 on 19th April, 2010 at about 11 a.m. and even as per the averments made in the present Petition, petitioners allegedly came from Pune to Shirasgaon, Post Shirasgaon, Tq. Bhokardhan, Dist.Jalna and further went to the residence of respondent no.3, when victim Rekha was alone at residence and they abused her and threatened her and asked her to consume `Aushad' and die, which was allegedly witnessed by neighbourers Narmadabai, Ankush Ingle and Latabai Ankush Ingle as well as complainant's father namely Bhika Ingle, who was present there and who was assaulted by petitioners and thereafter, petitioners went away. The said F.I.R. further recites that due to occurrence of the said incident deceased Rekha could not sustain humiliation and thereupon she consumed poisonous substance, and consequently, committed suicide. Thus, there are about 3 eye witnesses namely, Latabai, Narmadabad and Bhika Ingle to occurrence of the incident, in which father of complainant Bhika Ingle was allegedly assaulted by petitioners and petitioners herein allegedly uttered the aforesaid utterances towards the victim Rekha after abusing and threatening her that she should consume `Aushad' and die and thereby she could not sustain the said humiliation and consumed poisonous substance in the field 8 and committed suicide, and therefore, apparently there is close proximity in the alleged utterances made by petitioners herein towards victim and suicide committed by victim Rekha, and therefore, the observations made in the aforesaid Ruling, with due respect, will not be applicable in the instant case since there was difference of two days in committal of suicide in the said case after utterances. 11. Moreover, the fact can not be ignored as stated in the complaint F.I.R. that the rape was committed upon Rekha by son of petitioners namely, Ganesh and thereby her mental condition was disturbed and thereafter, petitioners uttered the said utterances towards Rekha and the said humiliation, resulted in committal of suicide by victim on the same day i.e. 19th April, 2010 and alleged delay of two days for lodging F.I.R. in respect of rape allegedly committed upon the victim on 17th April, 2010 as canvassed by learned counsel for petitioners would, not be impediment therein, since, apparently, the mental condition of victim was disturbed during the said period. 12. Besides that, alternate remedy is open to petitioners to apply for discharge after completion of investigation, if no evidence is collected against them during the course of investigation and petitioners may adopt the said remedy if they desire so after completion of investigation. 13. In the circumstances, having the comprehensive view of the matter, apparently, it appears that there is prima facie case against the petitioners and the matter deserves to be investigated further, and hence, apparently, I am of the view 9 that F.I.R. lodged by respondent no.3 on 19th April, 2010 under C.R. No.35/2010 does not appear to be false, frivolous and vexatious, and therefore, same can not be quashed and set aside as prayed for by petitioners in present Petition, and accordingly, present Petition fails. 14. In the result, present Petition stands dismissed and interim relief stands vacated. Rule stands discharged accordingly. 15. However, interim relief granted in terms of prayer clause `D' stands continued for a period of two weeks, but with directions to petitioners to give attendance before Incharge of Hasnabad Police Station as and when required on written intimation to them during the said period and to co-operate in investigation and petitioners shall not tamper and/or influence upon the witnesses directly or indirectly. (SHRIHARI P. DAVARE) JUDGE gas/criwp490.10