1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 263/2010 1 Rambhau s/o Baburao Sotre, Age : 44 years, Occu. Agriculture, R/o Asegaon, Tq. Gangapur, Dist. Aurangabad. 2 Karbhari s/o Trimbak @ Supad Jadhav, Age : 34 years, Occu. Agriculture, R/o As above. 3 Kadubal s/o Trimbak Sotre / Jadhav Age : 32 years, Occu. Agriculture, R/o As above. 4 Supad @ Trimbak s/o Ranganath Jadhav Age : 69 years, Occu. Agriculture, R/o As above. 5 Ramnath s/o Kashinath Jadhav, Age : 43 years, Occu. Agriculture, R/o As above. ...Applicants. Versus The State of Maharashtra, served through Govt. Pleader, High Court of Bombay, Bench at Aurangabad. ...Respondents. Shri R.P. Mote, Advocate for applicants. Shri S.N. Kendre, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J Date : 14th October, 2010. ORAL JUDGMENT:- 1 Heard. 2 By consent of the parties, the revision application is taken up for 2 final hearing. Both the parties appearing for the parties agreed that the record of the lower Court is not needed to decide the question that arose in this revision. The question that arose in this revision is whether the applicants who are accused in Sessions Case No. 160/2006 deserves discharge from the case. 3 All the applicants are residents of village Asegaon Tq. Gangapur District Aurangabad. On 26/11/2005 at about 1.35 p.m., crime was registered with M.I.D.C. Waluj Police Station against the applicant for offences punishable under Sections 306, 323, 506 read with Section 34 of Indian Penal Code. It is the prosecution case that the applicants on 24/11/2005 at about 9.30 p.m. Assaulted one Karbhari Kale a young man, who was unmarried son of the complainant in front of his house. They were accusing Karbhari of molesting the daughter of the applicant No.1. They used their kicks and fists to assault Karbhari. The complainant Kushinath the father of Karbhari intervened and stopped the applicant from assaulting Karbhari. He assured them that he would meet them next morning to settle the problem. Thereafter, Karbhari went to stay at their agricultural field but in the morning, he was found dead. He had committed suicide by consuming insecticide. It was found that Karbhari had written names of the applicants on his left palm, indicting that because of their atrocious conduct, he had got hurt and he had committed suicide. 4 After the charge sheet was filed, the case was committed the Court of Sessions. The applicants moved their application for seeking discharge on 19/06/2007. But the learned Additional Sessions judge rejected the application saying that there is prima facie case against the applicants. 3 5 On the face of it, there is certainly a case of assault and causing hurt to the deceased, against the applicant. But there is serious doubt about constituting the offence under Section 306 of Indian Penal Code against the applicant on the facts of the case. Section 306 reads as under. 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 tine.” This section is required to be read along with Section 107 of the Indian Penal Code. It reads as under. 107. Abetment of a thing :- A person abets the doing of a thing, who – First – Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that ting, 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. 6 The question is whether the assault of deceased Karbhari by applicants in previous night would amount to their instigation for Karbhari’s suicide. In order to prove that the applicants abetted Karbhari suicide, the prosecution has to bring on record following factors. (i)that the applicant got irritated or annoyed the deceased by words, deeds or willful omissions or conduct which may be the willful silence until the deceased were reacted. (ii)The applicant strongly advised and persuaded the deceased to do something or pushed or forced the deceased by words or willful omission or conduct which made even the willful silence to make the deceased to move forward more quickly in forward direction; (iii)The applicants had intention to provoke, incite or encourage the deceased to commit suicide, while acting in the manner stated above. 4 7 The above quoted requirements are culled out from the judgment of Kerala High Court in the case of Cyriac s/o Devassai & anr. Vs. Sub Inspector of Police, Kaduthuruthy & Anr. Reported in (2006 ALL MR (Cri) JOURNAL 27). The Supreme Court in the case of Gangula Mohan Reddy Vs. State of A.P. (2010 ALL MR (Cri) 615) held that a clear mens rea to commit offence under section 306 must be present for proving abetment of suicide. The Supreme Court in that judgment observed as under. “Abetment involves a mental process of instigation a person of 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 can not be sustained.” 8 In this case, there is nothing in the prosecution case that would indicate that the applicants had intention to drive Karbhari to commit suicide. It is true that Karbhari being of sensitive nature, got indirect influence and probably an oblique impact to his mind due to the assault, abuses he suffered at the hands of the applicants during the previous night. But that itself would not amount to abetment to his suicide. Karbhari’s fatal impulse and unfortunate action to end his life was certainly unfortunate. But the same would not connect to the assault abuse, insult at the hands of the applicants. The judgment of Kerala High Court in the case of Cyriac Supra should be referred for deciding this case. Indeed the entire judgment makes a very interesting reading. In view of this, the revision should succeed. ORDER a) The revision application is allowed partly. b) The applicants are discharged from the offence 5 under Section 306 of Indian Penal Code. c) The learned judge of the trial Court shall take steps accordingly. [A.V. NIRGUDE, J.] ts k/ok