Criminal Writ Petition No.1205 of 2013

14th March, 2014

Petitioner Counsel: Shri M.M. JOSHI
Respondent Counsel: Mrs. S.G. CHINCHOLKAR

Cases Cited:
Madan Mohan Singh Vs. State of Gujarat & Anr., 2010 ALL MR (Cri) 3245 (S.C.)=(2010) 8 SCC 628 [Para 13]
Devesh s/o Dattabhau Pathrikar & Ors. Vs. State of Maharashtra, 2010 ALL MR (Cri) 1731 [Para 13]
S.S. Cheena Vs. Vijay Kumar Mahajan & Anr., 2010 ALL MR (Cri) 3298 (S.C.)=(2010) 12 SCC 190 [Para 14]

JUDGMENT

JUDGMENT :- The question which has come up in this writ petition is, whether, if a person commits suicide out of frustration, due to civil disputes, if the accused who have been prosecuting civil litigations, could be said to have abetted the committing of suicide.

2. A brief reference to the dispute raised by the petitioners- accused is necessary to understand the controversy.

(a) The petitioners claim that, there was a dispute regarding Old Survey No.111/3, New Gat No.363, situated at Chapadgaon, Taluka Ghansawangi, District Jalna between the deceased Rukhamanibai and her daughter on one hand and the petitioners on the other. The petitioner No.1- accused claims that, he was owner and in possession of 5 acres of land from the above Gat, which he had purchased from the husband of deceased Rukhamanibai. Deceased Rukhamanibai had obstructed his possession and so, he brought Regular Civil Suit No.162/1993 against Rukhamanibai for declaration and injunction.

(b) Deceased Rukhamanibai along with daughters Parvati and Gangasadar (complainant in the charge sheet) had also filed Regular Civil Suit No.128/1993 seeking declaration of title and injunction to the extent of complete 10 acres 19 gunthas of land from the Gat concerned. On 5.12.1995, the Civil Judge, Junior Division, Ambad decreed Regural Civil Suit No.162/1993 of the petitioners and restrained the defendants from interfering with possession of petitioner No.1. On the same day, the Civil Judge, dismissed the suit which had been brought by Rukhamanibai. Rukhamanibai filed appeals against both the judgments.

(c) In the Regular Civil Appeal No.1/1996, the judgment of the trial Court was modified so as to declare the petitioner No. 1- accused as owner of the land concerned and perpetual injunction was issued against Rukhamanibai. In the Regular Civil appeal No.175/1995 which had been carried by Rukhamanibai, with reference to dismissal of her suit, it was found that, she was owner to the extent of 2 acres 17 gunthas land as per the record, but the same was required to be identified and she was given liberty to get it measured and find her land. The petition claims that, instead of getting the land measured, Rukhamanibai physically obstructed the petitioner No.1- accused in the property on 30.6.2004 and 7.8.2004, leading to police complaint. The petitioner No.1 claims that, he filed execution petition Regular Darkhast No.24/2004, on the basis of decree in Regular Civil Suit No.162/1993. and Regular Civil Appeal No.1/1996. The petition gives particulars as to how in execution the matter proceeded and evidence of parties was recorded and subsequently, on 30.9.2008, the Executing Court passed orders that Darkhast should proceed further.

(d) The petitioners claim that, on 4.12.2008, the Executing Court directed that Rukhamanibai may be detained in Civil Prison for a period of one month. It is claimed that, while the execution was pending, Rukhamanibai filed another Regular Civil Suit No.332/2008 and obtained temporary injunction suppressing the fact regarding the other proceedings. According to the petitioners, the exparte injunction obtained was in force only till filing of say by the petitioner No.1 in the said proceedings. The petitioners claim that on 20.1.2009, the Executing Court issued warrant of arrest in the execution proceedings. On 20.2.2009, committal order was passed and Rukhamanibai was directed to be sent to Civil Prison after she had been produced before the Executing Court. She was sent to Central Prison, Aurangabad, and while she was in prison, as she was not well, she was taken to Government Medical College & Hospital, Ghati, Aurangabad on 24.2.2009. On 27.2.2009, while she was in the hospital in the morning at about 4.45, she want to bathroom, and set herself on fire by igniting a match stick, due to which she sustained 85% burn injuries. Earlier, an offence was registered against her for attempt to commit suicide and her death on same day, due to complaint of her daughter, who was party in the civil proceedings, offence came to be registered against the present petitioners at C.R. No.40/2009 at Begampura Police Station, Aurangabad. The F.I.R. claims that, the petitioners had earlier harassed deceased Rukhamanibai and so, she committed suicide.

3. The case was committed to the Court of Sessions and registered as Sessions Case No.286/2009. The petitioners/ accused filed application before the Sessions Judge, Aurangabad for discharge, claiming that no offence of abetment to commit suicide is made out. The Assistant Sessions Judge, by order dated 10.10.2013, rejected the application. Thus, the present writ petition has been filed claiming that, continuation of the proceedings is abuse of process of law.

4. I have heard counsel for the petitioners/ accused as well as learned A.P.P. extensively. Learned counsel for petitioners/ accused referred to the above litigations and copies of the judgments and orders passed, as well as the warrant of committal, sending Rukmnibai to Civil Prison for one month on 20.2.2009. According to learned counsel, petitioners were pursuing civil remedies available to them under the law and as Rukhamanibai continued to violate the permanent injunction order, the Civil Court had sent her to Civil Prison, and while she was in Civil Prison, she was admitted to hospital where she tried to commit suicide and so, according to learned counsel, petitioners should not be treated to have abetted the committal of suicide.

5. Against this, the learned A.P.P. for State referred to the dying declaration of Rukhamanibai, which was recorded by Special Executive Magistrate on 27.2.2009 and her another dying declaration recorded by the Police Constable on the same day, to say that, the dying declarations disclose that Rukhamanibai was harassed and because of that she committed suicide. She submitted that, statements of witnesses relate to harassment by accused persons due to the civil disputes about the property. According to the learned A.P.P., the Sessions Judge has rejected the application for discharge and present writ petition deserves to be rejected.

6. There is no dispute regarding the fact that as per the orders passed by the Executing Court in regular Darkhast No. 24/2004, Rukhamanibai was sent to Civil Prison by the orders dated 20.2.2009 for a period of one month. It is also not disputed that, on 24.2.2009 she was taken for treatment and admitted at the Ghati Hospital and at that time, in the early morning of 27.2.2009 she set herself on fire and she expired in the same evening.

The dying declaration dated 27.2.2009 given to the Special Executive Magistrate by Rukhamanibai as regards the incident states that she is resident of Rani-Unchegaon and that she had been arrested from her house by the police on Friday and that, later on as she had pain in her chest, Police had brought her to Ghati Hospital at Aurangabad and admitted her and she was taking treatment there. The dying declaration claims that, she has come to know that (petitioners) Narayan, Bajirao and Jaganath have filed suit in respect of property against her at Ambad court. Dying declaration mentions that there is dispute pending regarding field. It is mentioned that, she has come to know that they have finished her relative. Due to that, on that day of 27.2.2009 at about 5.00 a.m. she took a match box which was near her cot in Ward No.4, and went in bathroom. She claimed that she was wearing 9 yard cotton saree and herself took out a match stick and ignited it and put her saree on fire which started burning. She raised noise and immediately her daughter came to her and extinguished the fire.

This is what was stated to the Special Executive Magistrate.

7. In another dying declaration dated 27.2.2009 of the same date given to Head Constable, Rukhamanibai told that she had dispute regarding field property with the accused persons regarding which dispute is pending in Ambad Court and due to the disputes she was sent to Harsool prison. She claimed that she had bone disease, due to which she was admitted in Ward No.4 by the police. She claimed that on that date of 27.2.2009, at about 4.45 a.m. while she was taking treatment at Ghati Hospital, she had gone to bathroom and there was darkness and she set her 9 yard saree on fire and she got burnt, and the fire was extinguished by her daughter and lady Police Constable Dube. It claimed that, she put herself on fire. She claimed that, she had dispute about field property with the respondents and they had threatened her to kill and because of that, she burnt herself and nobody else had burnt her.

8. Other than this, there is F.I.R. filed by Gangasagar, the daughter of the deceased. In the F.I.R. it is claimed that Gat No.363 at Chapadgaon is admeasuring 5 Hectors 42 R, in which 2 acres 18 gunthas land is in the name of mother Rukhamanibai as per the 7/12 extract. But that, when they were going for cultivating, the accused Narayan, Jagannath and Bajirao (petitioners) were opposing and many times had beaten her and one occasion, her mother was hung to a mango tree and was beaten. Due to such trouble, the F.I.R. claims that, Rukhaminabai had filed dispute with Ambad Court and Police, and litigation was pending in Ambad Court. It is stated that, in the litigation filed by Narayan (petitioner No.1), mother could not attend as was not well and arrest warrant was issued and her mother had been produced before the Court at Ambad on 20.2.2009. The complainant claims that she did not come to know about her mother being taken to the Court and could not arrange for bail. Her mother, deceased Rukhamanibai was sent to prison. It is claimed, in prison as she was not well, she was admitted in Ward No.4 of Ghati Hospital on 24.2.2009. The F.I.R. further makes allegations that, due to the dispute regarding property by accused, her father had gone missing from home about 15-16 years back. Because of the harassment from accused persons, time had come that Rukhamanibai was sent to prison and at Ghati Hospital in the morning of 27.2.2009 at 4.45 a.m. she set herself on fire and had expired at 11.00 p.m. on same day. Thus, F.I.R. was lodged against the petitioners/ accused.

9. The statements of witnesses filed with the charge sheet, in substance, refer to the civil disputes pending between the parties and it is alleged that, because of the harassment of the litigation, Rukhamanibai had committed suicide.

10. Section 107 of the Indian Penal Code (IPC) for short) defines abetment 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 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.

After Illustration, Explanation (2) is :-

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 facilitates the commission thereof, is said to aid the doing of that act."

11. It is clear that, to try a person for abetment, it will have to be prima facie shown that the person instigated the doing of the thing (like suicide in the present matter). If it can be shown that the accused persons aided or encouraged or goaded the deceased or facilitated in any manner the commission of suicide, it would have been abetment. In that case, they could have been proceeded against for abetment of suicide under Section 306 of the IPC.

12. If the two dying declarations as well as the F.I.R. are perused and accepted as true, still, it is clearly on record that no prima facie case is made out of abetment of committing suicide by the petitioners/ accused. In fact, since the time Rukhamanibai was sent to prison on 20.2.2009, it cannot be even said that the petitioners/accused had even any access to Rukhamanibai till 27.2.2009 when she is stated to have committed suicide. Rukhamanibai appears to have been frustrated due to the ongoing civil disputes, and on the spur of moment or at some point of weakness she took the unfortunate step of ending herself. Merely because of that, the petitioners/ accused persons cannot be arrayed as accused to face the criminal prosecution of abetment of suicide.

13. Learned counsel for the petitioners/ accused relied on the case of Madan Mohan Singh Vs. State of Gujarat & anr., reported in (2010) 8 SCC 628 : [2010 ALL MR (Cri) 3245 (S.C.)] and the judgment in the matter of Devesh s/o Dattabhau Pathrikar & ors. Vs. State of Maharashtra, reported in 2010 ALL MR (Cri) 1731. It is argued on the basis of above judgments that, from the acts of accused, intention has to be seen if they wanted deceased to commit suicide.

14. In the matter of S.S. Cheena Vs. Vijay Kumar Mahajan & anr., reported in (2010) 12 SCC 190 : [2010 ALL MR (Cri) 3298 (S.C.)], Hon'ble Supreme Court , while considering facts of that matter, observed in para 28 as under :

"28. 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. The intention of the legislature and the ratio of the cases 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."

In para 30, it was observed as under:

"30. 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."

In the present matter, it cannot be said that the petitioners/ accused when they were litigating their civil rights, had any intention that Rukhamanibai should commit suicide. No ingredients of abetment of suicide have been made out in the present matter. Even if on earlier occasions there was quarrel or incident of beating, it cannot be treated as abetment to commit suicide after so many days.

15. The Assistant Sessions Judge does not appear to have examined the material on record in the charge sheet. The Assistant Sessions Judge simply observed that he has gone through the contentions raised, and observed that, considering the allegations, supported by documentary evidence on record, he is of the opinion that the accused cannot be discharged on the basis of prima facie material and the evidence on record. The order does not refer to any particulars and without recording reasons worth the name, rejected the application.

16. The F.I.R. registered refers to Sections 306, 323, 506 and 34 of the IPC. It is quite clear that, offence under Section 306 of IPC is not made out. As regards Sections 323 and 506, there are only vague statements in the F.I.R., stating that on earlier occasions, due to disputes, there had been instances of beating and that on one occasion Rukhamanibai had been hung to a mango tree and was beaten. There are no particulars of day, date, places or any witnesses. The allegations are absolutely vague. Even otherwise, if Section 218 of the Criminal Procedure Code is perused, for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. It is not a case under Section 220 of the Criminal Procedure Code where if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Looking to the present F.I.R. and charge sheet, the earlier instances of quarrels cannot be clubbed together in this crime of abetment to commit suicide. Keeping in view Sections 218 and 220 of the Criminal Procedure Code, Sections 323 and 506 of the IPC, as clubbed in the same charge sheet, are not maintainable.

17. For the above reasons, the Criminal Writ Petition is allowed. F.I.R. filed against the petitioners/ accused in the present matter and Sessions Case No.286/2009, pending before the Assistant Sessions Judge, Aurangabad against the present petitioners/ accused are quashed and set aside.

18. Rule made absolute accordingly.

Petition allowed.