Allowed

Nisar Ismail Waghoo v. the State of Maharashtra

Bombay HC22 Mar 2012REVN/442/2011

Case brief

AI extract

What is this about?

This High Court, in a criminal revision, allowed the applicant's application for discharge. The court set aside the impugned order rejecting the discharge application under Section 227 Cr.P.C., holding that the prosecution failed to prima facie establish that the applicant instigated or abetted the deceased's suicide under Section 306 IPC.

What did the court decide?

Impugned order setting aside and criminal revision application made absolute in terms of prayer clauses (c) and (d)

Nisar Ismail Waghoo Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2012)

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Ssk/ 1 REVN 442.11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL REVISION APPLICATION NO. 442 OF 2011

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Mr. Nisar Ismail Waghoo

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....Applicant

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Versus

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The State of Maharashtra & Anr. ....Respondents

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Mr. Ashok Mundargi i/b. Mr. Hrishikesh Mundargi, advocate for the applicant.

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Mr. A. S. Shitole, APP for the State.

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CORAM : RANJIT MORE, J. DATE OF RESERVING : 25^th January, 2012. DATE OF PRONOUNCING : 22nd March, 2012.

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Oral Order :

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Rule. Rule is made returnable forthwith. By consent of the parties, the matter is heard finally.

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By way of present revision, the applicant challenges order dated 5^th September, 2011, passed by the learned Ad-hoc Assistant Sessions Judge, City Civil Court, Greater Bombay, thereby rejecting the application at Exhibit “4” in S.C. No. 211 of 2011 filed by the present applicant for discharge under the provisions of Section 227 of the Cr.P.C..

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Ssk/ 2 REVN 442.11

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The facts, in brief, giving rise to the present application are as follows:

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The FIR in question was registered on 7^th July, 2009, on the basis of the statement of Mrs. Jyoti Sarvesh Singh, wife of the deceasedSurvesh Singh about the alleged incident which occurred on 30^th March, 2009 at about 6.20 a.m.. As per the FIR, the deceased Survesh Singh asked one person of the society to open the lift and then went on the terrace and jumped on ground. He was taken to the hospital where he was declared dead. It is alleged in the FIR that during the second and third week of February, 2009, and thereafter, the deceased was very much upset. On 15^th March, 2009, he consumed sleeping pills and was admitted in Prince Agha Khan Hospital and on the following day, he was discharged. According to the complainant, the deceased did not tell any reason for being upset and he was advised rest for a week.

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It is further alleged in the FIR that on 29^th March, 2009, the deceased had taken meal with his family. However, he did not narrate anything to the complainant. Thereafter on 30^th March, 2009 at about 6.30 a.m. he went outside and after some time, the complainant heard noises of people and, then, she rushed to the spot, where she found that the deceased had jumped from the terrace of Ramdas Co-operative Housing Society Building. The deceased was taken to the hospital, however, he was found dead before admission.

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Ssk/ 3 REVN 442.11

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As per the complainant, on 11^th April, 2009, a suicide note was handed over to her by one Umesh Bari and the said Umesh Bari told the complainant that one Govind handed over one plastic bag containing the said letter to him. The police thereafter recorded the statement of the complainant on 20^th April, 2009 and registered the aforesaid FIR on 7^th July, 2009. The letter referred above(suicide note) is addressed to the Senior Inspector, Byculla Police Station and which reads as follows:

“30/3/2009

Hon’ble Sr.

Inspector,

Byculla Police St.

Due to Kaka’s blackmailing to sing on his tune and to get signature on, stamp paper, making settlement with him in front of Chaturvedi and putting me behind M.R.T.P. I am ending my life.

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Kaka is full responsible to put me in grave take action please. Due to me, he got flat and now I am no more. Thanks to Chaturvedi also.”

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The police after registering the FIR recorded statements of several witnesses including that of Umesh Bari, Govind, Anand and Abhishek-sons of the deceased, Chaturvedi and Javed Kauvsar. During the investigation, the police also collected the record of Civil Suit

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Ssk/ 4 REVN 442.11

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No. 2477 of 2004 filed by the applicant against the deceased, the list of the complaints filed against the deceased by various persons as well as notice under MRTP Act. After completion of the investigation, the police filed a charge-sheet against the present applicant under Section 306 of the IPC.

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The Applicant thereafter preferred an application under Section 227 of the Cr.P.C. for discharge on the ground that there is no material to implicate the present applicant. The said application was, however, rejected, and therefore, the applicant has approached this Court by way of the aforesaid revision.

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Mr. Mundargi, learned senior counsel appearing for the applicant, submitted that the entire prosecution case is based on so called suicide note. It was submitted that the suicide note is alleged to have been found in the plastic bag. However, the complainant in her earlier statement recorded on 30^th March, 2009, does not mention anywhere that she saw the deceased carrying the plastic bag containing the said letter. The liftman also did not see any plastic bag in the hand of the deceased. It was also contented that the police recorded the panchanama on 7.00 a.m. on 30^th March, 2009 and inspected the spot of the incident, however, did not find anything there. It was also contended that as per the story of the prosecution, the complainant came to know about the letter on 11^th April, 2009, however, on that day, no FIR was registered. The complainant did not approach the police on

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Ssk/ 5 REVN 442.11

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that day. The said letter was handed over to the Police on 20^th April, 2009. The delay in disclosing this letter is not explained. It was also alleged that the wordings in the suicide note are fabricated one. The suicide note makes a reference of name of one Kaka and the deceased has alleged harassment caused by the said Kaka and one Chaturvedi. There is no reference of the name of the present applicant in the said suicide note. It was contended that the applicant had filed Civil Suit No. 2477 of 2004 in the City Civil Court against the deceased which came to be decreed in favour of the applicant on 30^th November, 2009. It was also contended that several persons had filed complaints against the deceased. It was submitted that filing of the complaint or filing of the suit against the deceased cannot said to be abetment to commit suicide by the deceased. It was also submitted that even according to the prosecution, the case is of suicide and not of homicide. It was further submitted that there is nothing on record which could have been said to establish the intention on the part of the applicant to drive the deceased to commit suicide. Lastly, it was submitted that taking the entire prosecution material at its face value, still it is not sufficient to bring guilt on the part of the accused under Section 306 of the IPC. Mr. Mundargi, learned senior counsel, relied upon the Apex Court judgments in Madan

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Mohan Singh vs. State of Gujarat and anr. (2010) 8 SCC 628 and S. S. Chheena versus Vijay Kumar Mahajan & anr. 2010 (4) Crimes 101 (SC).

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Ssk/ 6 REVN 442.11

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Mr. Shitole, learned APP, resisted the revision. The prosecution heavily relied upon the suicide note. It was contended that the name of the accused(present applicant) who was also known as Kaka was mentioned in the suicide note. The suicide note discloses that the applicant made the deceased dance to his tune and compelled him to face action under MRTP Act. The deceased, therefore, was under tension and committed suicide. It was submitted that taking overall circumstances of the case into consideration, there is a strong suspicion against the applicant, and therefore, the applicant must face the trial and he cannot be discharged at this stage.

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I am aware of limited jurisdiction of this Court while considering the question as to whether the applicant ought 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 inquiry 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 on the part of the accused for the offence charged with or not. Before dealing with the merits of the case, I would like to deal with the case law laid down by the Apex Court which deals with the principles of discharge from criminal case under Section 306 of the IPC.

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In the case of Madan Mohan Singh (supra) , the petitioner was

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working as a DET in Bharat Sanchar Nigam Ltd.. The deceased i.e.

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Ssk/ 7 REVN 442.11

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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 :-

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“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 106 of the IPC. We could not find anything in the FIR or in the socalled 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.

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In spite of our best efforts and miscroscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himsel describes as depression. In the so called suicide note, it cannot be said that the accused even intended that the driver under him shold commit suicide or should end his life

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Ssk/ 8 REVN 442.11

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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.

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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 requried. 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 Sectio 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.

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It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, 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 hazardouls to ask the appellant – accused to face the trial. A criminal trial is not exactly a pleasant experience. The

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Ssk/ 9 REVN 442.11

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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.

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As regards the suicide note, which is a document of about 15 pages, all that we can say is that is 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 prosectuions are allowed to continue on such basis, it wil be difficult for every superior officer even to work.”

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In the case of S. S. Chheena (supra), there was a dispute

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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 tothe 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 13^th October, 2003 by the Security Officer of the University Shri S.S.Chheena. During the

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Ssk/ 10 REVN 442.11

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course of inquiry, on 17^th October, 2003, Saurav Mahajan committed suicide by jumping in front of the train. A suicide note was seized from the pocket of the deceased. On the complaint of father of the deceased, an offence under Section 306 of the IPC was registered against Hariminder Singh. During the course of trial, S.S.Chheena was also impleaded as accused. Being aggrieved by the framing of charge, S.S.Chheena approached the High Court. The High Court refused to interfere. Being aggrieved thereby, said S.S.Chheena approached the Supreme Court. The Apex Court observed thus:

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“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 selfrespect. 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.

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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.

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The intention of the legislature and the ratio of the cases

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Ssk/ 11 REVN 442.11

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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.

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In the instant case, the deceased was undoubtedly 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.

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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. ”

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(emphasis supplied)

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It can thus be clearly seen that for proceeding further with the trial against the accused for offence punishable under Section 306 of the IPC, 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

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Ssk/ 12 REVN 442.11

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deceased to commit suicide. In the absence of availability of such material, the accused/applicant cannot be compelled to face trial for the offence punishable under Section 306 of the IPC. As held by the Apex Court, an abetment involves mainly a process of instigating a person or intentionally aiding a 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 or direct act of the accused which led

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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 of the IPC cannot be permitted.

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Applying the above ratios of the Apex Court, I now propose to examine whether the prosecution is in a position to prima-facie establish whether the applicant/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 applicant/accused which might have aided or instigated or abetted the deceased to commit suicide. The prosecution will have to, prima facie, establish a 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 in such a position that he committed suicide.

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Ssk/ 13 REVN 442.11

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As stated above, the prosecution has heavily relied upon the statements of Mrs. Jyoti Singh, wife of the deceased, Umesh Bari, Govind, two sons of the deceased, Chaturvedi and Javed Kausar. Apart from these statements, the prosecution has relied upon the suicide note as well as the proceedings of Civil Suit No. 2477 of 2004, the list of the complaints filed against the deceased as well as MRTP notice against the deceased. The statement of Mrs. Jyoti, wife of the deceased was initially recorded on the date of the incident i.e. on 30^th March, 2009. The panchanama was also recorded of the scene of the offence. Both the statement and panchanama does not make reference to the suicide note. The FIR was registered on the basis of the statement of Mrs. Jyoti, wife of the deceased, which came to be recorded on 20^th April, 2009. In her statement, she has stated that during the year 2008-2009, the deceased was appearing to be mentally disturbed. It is further stated that on 15^th March, 2009, the deceased attempted suicide by consuming sleeping pills and was admitted in the hospital for one day. A reference of the suicide note was made in the statement. It is alleged that on 11^th April, 2009, Umesh Bari handed over a plastic bag containing this note to her, which note was given to Umesh Bari by Govind. The statement of Mrs.Jyoti, wife of the deceased about this suicide note is corroborated and supported by the statements of Umesh Bari and Govind. The statements of Anand and Abhishek, sons of the deceased, also clearly demonstrate that the deceased was under

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Ssk/ 14 REVN 442.11

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tremendous burden of loans which he had acquired from State Bank of India, M/s. Sun Shine Builders and Mr. Dilip Kumar Jain. The deceased had also received several notices in respect of the loans taken from the concerned persons which clearly shows that the deceased was under mental pressure and depression.

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A copy of the judgment of Civil Suit No. 2477 of 2004 is filed along with the charge-sheet. Perusal of the same, shows that the said suit was filed by the present applicant against the deceased in respect of monetary dispute between them. The charge-sheet also makes reference of complaints filed by several persons against the deceased in Byculla Police Station. The complaint shows that the deceased was under mental stress due to the legal complications which cannot by any means be termed as instigation or abetment as the persons including the applicant is well within the legal right to do so. The MRTP notice was

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also issued by the Municipal Corporation of Greater Mumbai against the deceased regarding the construction which the deceased had undertaken. The material produced by the prosecution itself shows that the deceased was mentally disturbed since almost one year, so much so, that on 15^th March, 2009 he had attempted suicide by consuming sleeping pills. The deceased never disclosed or discussed anything related to his business with his wife or family members. Mrs. Jyoti, wife of the deceased has stated that the deceased was looking depressed

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Ssk/ 15 REVN 442.11

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one day prior to the date of suicide. This shows that the deceased was not in proper frame of mind at the time of the incident.

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The statement of Chaturvedi shows that he along with the deceased was in business of construction. The deceased and the applicant had also constructed a building called Mahalaxmi Apartments. There were disputes that led to filing of a civil suit. The applicant was well within his rights when he filed Civil Suit No.2477 of 2004 against the deceased in respect of their monetary dispute. Thus, it can be seen from the prosecution case itself that the deceased was in construction business. He had dealings with the present applicant and Chaturvedi. The deceased also was facing several complaints filed by several persons, as well as by Municipal Corporation and also a suit filed by the applicant. The prosecution case further discloses that the deceased was in fact mentally disturbed and was under tremendous pressure. Even if the suicide note is taken at its face value, it does not spell out any act on the part of the applicant/accused which intended to push the deceased in such position to commit suicide. In fact from the suicide note, there is not an iota of information or allegation that the applicant had instigated, provoked or abetted the suicide of the deceased as contemplated under Section 306 read with Section 107 of the IPC. The deceased, a mentally disturbed person because of several criminal complaints as well as dispute regarding his business had gone into depression. He was also under tremendous burden of loans which he

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Ssk/ 16 REVN 442.11

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had acquired from various financial institutions. From the prosecution story, it is clear that the deceased could not bear this pressure. The deceased in his suicide note had made reference to the applicant as Kaka and one Chaturvedi and alleged that because of them, he has committed suicide. However, in the absence of any intention or mens rea on the part of the applicant to push the deceased in such a position to commit suicide, the applicant cannot be said to have committed any offence much less an offence under Section 306 of the IPC. It seems that the deceased in depression and under mental pressure committed the unfortunate act. The applicant cannot be, in these circumstances and in light of the Apex Court judgements, held responsible under Section 306 of the IPC. I find that there is no material which would show that the applicant had abetted the suicide by the deceased. I find that no purpose would be served by making the present applicant face the trial for offence punishable under Section 306 of the IPC. The impugned order in the light of above observations cannot be sustained. The said order is liable to be set-aside. Accordingly, the criminal revision application is made absolute in terms of prayer clauses (c) and (d).

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(RANJIT MORE, J.)

Nisar Ismail Waghoo v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Nisar Ismail Waghoo v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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