Oral Judgment:
1. By this Criminal Revision, the applicant takes exception to the judgment and order dated 27th of December, 2005, passed by the learned Additional Sessions Judge, Buldana in Criminal Appeal No.41 of 2002, dismissing the same and thus confirming the judgment and order dated 31st of October, 2002 passed by learned Assistant Sessions Judge, Buldana convicting the applicant for the offence punishable under Section 305 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for three years and to pay a fine of Rs.5000/-, in default to suffer R.I. for one year.
2. Prosecution case can briefly be stated as follows
Deceased Tarun Bagde was studying in St. Josef English School at Buldana since 1993 when he was in second standard and was residing in the hostel run by Meerymeyar Church of which applicant/accused was the Rector. It is the case of prosecution that about 1-1/2 months prior to the incident, which occurred on 14th of October, 2000, applicant had provided ill-treatment to the deceased due to which he committed suicide. According to the case of prosecution, about 5 to 6 days prior to the incident deceased had informed said fact to his father, the complainant. On 13th of October, 2000 complainant was informed by accused that Tarun was suffering from Gastro as he had eaten poisonous chocolate. Thus, his father Jaiprakash reached Buldana at 4.35 to 4.40 p.m. and visited the hospital, however, on his reaching to the hospital, his son died in 10 minutes.
3. On the basis of M.L.C. report, A.D.No.112 of 2000 was registered under Section 174 of the Criminal Procedure Code. During the course of its investigation, inquest panchanama came to be prepared and dead body was sent for autopsy. As per the post mortem note, cause of death of deceased was certified as poisoning and viscera was preserved for chemical analyzer.
4. It is the case of prosecution that, thereafter, on 15th of December, 2000, in the evening, complainant - father of the deceased, received one envelope on the address of his dispensary, containing a letter of deceased Tarun to his parents, and marked on record as Article 'B'. On receipt of this letter, on 18th of December, 2000 report came to be lodged vide Exh.52, on the basis of which offence came to be registered vide Crime No.185 of 2000 for the offence punishable under Sections 305 and 306 of the Indian Penal Code and was further investigated, during the course of which, two note-books of deceased Tarun were seized vide Exh.60. Article 'B', letter, came to be seized. On completion of investigation, charge-sheet came to be filed in the court of Judicial Magistrate (F.C.), Buldana.
In due course of time, case came to be committed for trial to the learned Sessions Court. Charge was framed against the applicant for the offence punishable under Sections 305 and 306 of the Indian Penal Code vide Exh.8 to which he pleaded not guilty and claimed to be tried. It is his specific defence that complainant with the help of other rival educational institutions at Buldana falsely implicated him in this case, though his behaviour towards the hostel inmates and deceased was good. According to the applicant, deceased while residing in the hospital was homesick.
5. The court of Assistant Sessions Judge, Buldana finding that offence punishable under Section 306 of the Indian Penal Code does not survive, convicted appellant for the offence punishable under Section 305 of the Indian Penal Code and had sentenced him to suffer rigorous imprisonment for 3 years and to pay fine of Rs.5000/-, in default of payment of fine to suffer R.I. for one year.
6. Applicant challenged said conviction order passed by Assistant Sessions Judge, Buldana before the learned Additional Sessions Judge, Buldana. The learned Additional Sessions Judge, Buldana vide its judgment dated 27th of December, 2005 dismissed the appeal thereby confirming the conviction and sentence recorded by the Assistant Sessions Judge, as aforesaid, against which present criminal revision application is filed.
7. Heard Shri M.G. Bhangade, learned Senior Counsel for the applicant and Shri A.H. Laddhad, learned Additional Public Prosecutor for the State.
8. To effectively evaluate the submissions advanced by the learned counsel of both sides, I have scrutinized the evidence on record with their assistance.
9. Having considering the fact that the applicant is convicted for the offence punishable under Section 305 of the Indian Penal Code on the charge that on 13th of October, 2000 applicant/accused abetted commission of suicide by said Tarun Bagade, a person under 18 years of age, by taking hard work from him and by providing him stale food, it is necessary for the prosecution to firstly establish that deceased committed suicide. Reading Sections 306 and 107 together, it is clear that if any person instigates any other person to commit suicide and as a result of such instigation other person commits suicide, the person causing the instigation is liable to be punished under S.306 of the Indian Penal Code for abetting the commission of suicide. A plain reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide.
In view of above ingredients to be established by the prosecution, on considering evidence of PW 10 Dr. Ajit Shirsat, it has come on record that on 13th of October, 2000 he was working as a Medical Officer in Government Hospital at Buldana on which day at about 12.35 noon he had examined deceased Tarun, aged 14 years who was brought to hospital by the applicant. He has stated that on admission, deceased was conscious, and was informed by the deceased that he ate stale chocolate and was thus vomiting. Accordingly, PW 10 Dr.Ajit made an entry in the case paper pertaining to food poisoning. This witness has proved on record medical papers vide Exh.55 and has further stated that deceased was then examined by him at 1.30 p.m. when his condition was not satisfactory, and on clinical examination he suspected deceased to have consumed poison like organo phosphorous insecticide and accordingly started treatment. He has further stated that on 21st of October, 2000 authorities of Police Station, Buldana made a query with reference to the nature of poisoning consumed by deceased, upon which he has opined vide Exh.58 that the deceased had consumed organo phosphorous type of insecticide. However, according to him, said finding was subject to its confirmation by Chemical Analyzer.
According to evidence of this witness, deceased, on being admitted in General Hospital, gave a history of his consuming stale chocolate due to which he was suffering from vomiting. It has also come on record that during the course of medical treatment provided to deceased and on his clinical examination PW 10 Dr.Ajit suspected that deceased might have consumed poisonous substance like Organo phosphorous insecticide.
10. Evidence of PW 1 Dr. Rajendra Chincholikar reveals that on 13th of October, 2000 while he was on duty at General Hospital, Buldana as a Medical Officer, PW 10 Dr.Ajit had referred deceased to him to whom he examined at 12 to 12.30 noon when he was accompanied with one teacher and one student of St. Josef English School, who on enquiry, informed that deceased had consumed chocolate due to which he is suffering from stomachache and vomiting. According to Dr.Rajendra, deceased was not in a position to speak and he was already provided saline and treatment for vomiting. He further stated that half an hour thereafter Tarun's condition became serious and he was thus examined and it was found that it was the case of oral poisoning. Tarun died on same day at 5 p.m. It has further come in his evidence that, generally, the practice adopted is to ask the history of patient to mention it in the case papers. According to the case papers of deceased, he was stated to be suffering from food prisoning (sic) and acute gastric with dehydration. It was also stated that patient had consumed chocolate on that day in the morning and had vomiting. PW 1 Dr.Rajendra though claims that on his examining deceased he was not in a position to talk, he has admitted that he had not stated said fact anywhere. Similarly, this witness though claims to have stated in his statement recorded by police that deceased was unable to talk, he is not in a position to state any reason as to why said fact is not mentioned in his statement. Above omission of PW 1 Dr.Rajendra, thus goes to the very root of the case as it is specific evidence of PW 10 Dr.Ajit that on 13th of October, 2000 he examined deceased at about 12.35 p.m. and was then examined by PW 1 Dr.Rajendra, who also claims to have examined, as above, on that day at about 12 to 12.30 noon, and has deposed that deceased was not in a position to speak.
In view of evidence of PW 10 Dr.Ajit, who has specifically stated that, on his examining Tartun, on his admission in the hospital on 13th of October, 2000 at 12.35 noon, he was in a position to speak and had in fact given history of his consuming stale chocolate due to which he was vomiting. PW 1 Dr.Rajendra is coming out with a different story thereby improving the same by stating that on his examining Tarun on the same day at 12 to 12.30 noon he was informed by the teacher and students, who were accompanying him that he had consumed stale chocolate due to which he was suffering from stomachache and vomiting while deceased was unable to speak. PW 1 Dr.Rajendra thus, appears to have materially improved his version that Tarun was not in a position to speak when he was referred to him by PW 10 Dr.Ajit though both these Medical Officers have independently examined the deceased on the same day and almost at the same time.
11. Evidence of P.W. 6 Dr.Ganesh Gaikwad when perused reveals that on the day of incident at 8 p.m., he had performed autopsy on dead body of deceased and had opined cause of death due to poisoning and had preserved the viscera. According to this doctor, exact nature of poisoning cannot be told as there was no smell of poisoning to the fluid which was sent to the Chemical Analyzer and has stated that deceased might have taken last food about 6 hours prior to his death. He has stated that poison was found mixed with food inside the stomach.
12. In the background of evidence on record of PW 10 Dr.Ajit, specifically deposing of deceased narrating him history of his consuming stale chocolate while according to the evidence of PW 1 Dr.Rajendra, deceased was stated to be not in a position to speak, though both of them had examined the deceased almost at the same time, another limb of prosecution story comes on record from the evidence of PW 3 Shirishkumar, who has stated that he is running a shop for sale of seeds, pesticides, fertilizer and agricultural implements at Buldana. He states that on 28th of July, 2000 he had sold insecticide to Catholic Church, Buldana. The incident is of dated 13th of October, 2000. He states that during the course of investigation he was called by Buldana Police Station and was confronted with the receipt of his shop, according to which he deposed that said insecticide was sold to applicant. In the cross-examination he states that the insecticide which was sold to applicant is a fertilizer used for flower plants and said insecticide contains monocrotophos which is a poisonous substance.
Thus, from the evidence of this witness, it has come on record that above insecticide, on being purchased by accused, was available at Catholic Church at Buldana though it was purchased couple of months prior to incident. In the circumstances, there are two possible views, firstly; that deceased accidentally ate stale chocolate due to which he suffered poisoning resulting into his death and secondly; in view of evidence of PW 10 Dr.Ajit who has deposed that deceased was found to have consumed poisonous-like substance, while as per the evidence of PW 3 insecticide containing poisonous substances monocrotophos was purchased for flower plants by the applicant for his institute about couple of months prior to the incident. However, there is nothing on record to establish that on the day of incident said insecticide was accessible to deceased for its consumption. In the circumstances, prosecution can not said to have established beyond reasonable doubt that deceased committed suicide by consuming insecticide as possibility of his sustaining food poisoning due to eating stale Chocolate as informed by deceased himself also cannot be ruled out.
13. Prosecution though has examined PW 8 complainant, father of the deceased - who has stated that at the time of incident his deceased son was studying at Buldana in 9th standard in St.Josef English School and was inmate in the hostel run by Institute of which applicant was Warden, according to him that in the last week of August, deceased Tarun had visited him at Risod and had complained against accused of his providing insufficient and stale food. He has further stated that thereafter about 4 - 5 days prior to Dussehra festival or about 7 days prior to the incident, he had received phone call from Tarun who had complained of ill treatment to him by the applicant, upon which he gave him understanding. According to this witness, two days prior to incident Tarun made a phone call and again reiterated about the ill-treatment provided to him.
Similar is evidence of PW 12 Rekha, mother of deceased, about their receiving telephone call from the deceased prior to the incident. However, it is material to note that there is nothing on record to establish that immediately prior to deceased committing the alleged suicide was abetted of same by the accused as instances, which are stated by complainant, are of the month of August, and thereafter about 7 days prior to the incident and on 11th of October, 2000 i.e. two days prior to the incident. Above evidence, however, do not establish involvement of applicant in whatsoever manner as alleged by the prosecution as there is nothing on record to establish if deceased died of accidental death or by suicide which was abetted or instigated by applicant, immediately prior to incident.
14. From the evidence of PW 5 Shivcharan, hostel inmate of deceased, it has come on record that at the time of incident he was also residing in the same hostel and on some occasion stale eatable are supplied to students which they used to decline. It has come in his evidence that apart from deceased, other students like Dependra Parmar used to object applicant for supplying such stale food upon which applicant used to tell that there will be improvement in the food quality. He has further stated that about 8 to 10 days prior to the incident, applicant got angry on Tarun. Except for above evidence, there is nothing in the evidence of this witness to establish that applicant is in any way responsible for the death of deceased. On the contrary, it has come in his evidence that while residing in the hostel, Tarun had become homesick and was remembering his parents always. He further stated that deceased used to say that he does not want to reside at Buldana and wanted to go back to Risod. In that view of the matter, prosecution case again fails to prove involvement of applicant on this count.
15. Similarly, from the evidence of PW 7 Kirtesh Agrawal no case of prosecution can said to have been substantiated, thereby establishing involvement of accused, as this witness has stated that he is running shop at Buldana and knows deceased Tarun and his father. According to this witness, while deceased was residing in the hostel, on Sundays, he used to visit him and inform that accused was providing stale food. He stated that such information was also provided by deceased during Nav Ratri season and Dussehra. However, again from the evidence of this witness there is nothing to establish that, on the date of incident on 13th of October, 2000 if applicant instigated or abetted deceased to commit suicide. On the contrary, from the earlier discussed evidence, possibility of deceased dying of accidental death by consuming stale chocolate also cannot be ruled out.
16. In the background of above limited evidence on record, I have, therefore, considered whether the allegations levelled against the applicant disclose commission of offence punishable under Section 305 of Indian Penal Code, by him.
17. The law relating to 'abetment' is found in Chapter V of the Indian Penal Code. Section 107 of the I.P.C. 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 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 willful misrepresentation, or by willful 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 that thing.
Illustration A, a public Officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here, B abets by instigation the apprehension of C.
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."
Section 108 of the Indian Penal Code defines 'abettor'. It reads as under :
"108. Abettor.- A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."
(Explanations and illustrations omitted as not relevant for the present.)
18. In the backdrop of above legal position, it is the case of prosecution that applicant instigated Tarun to commit suicide. In that view of the matter, it is necessary to consider when a person is said to 'instigate' another? The word 'instigate' literally means to goad, or urge, forward, or to provoke, incite, urge, or encourage, to do an (evil) act. It is well settled that in order to amount to abetment, there must be mens rea or community of intention. Without knowledge or intention, there can be no abetment and the knowledge and intention must relate to the act said to be abetted i.e. suicide, in this case. In order to constitute 'abetment by instigation', there must be a direct incitement to do the culpable act.
19. The concept of 'abetment' in the context of abetment of suicide, which is punishable under Section 306 of Indian Penal Code, is discussed by the Apex Court in the case of Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh, 2002 Criminal Law Journal 2796. In the reported decision, the Supreme Court of India extensively dealt with the concept of 'abetment' in the context of the offence punishable under Sec. 306 of the Indian Penal Code. In that case, the allegation against the accused-appellant before the Supreme Court -was that he had abetted the commission of suicide of his sister's husband - one Chander Bushan. The facts appearing in the reported judgment show that there were matrimonial disputes between Neelam -sister of the appellant/accused - and her husband and that, in connection with these disputes, the appellant had allegedly threatened and abused the said Chander Bhushan. Chander Bhushan committed suicide and the suicide was attributed by the prosecution to the quarrel that had taken place between the appellant and the said Chander Bhushan, a day prior. It was alleged that the appellant had used abusive language against said Chander Bhushan and had told him "to go and die". The appellant, who had been charge sheeted for an offence punishable under Section 306 of the Indian Penal Code, filed a petition under Section 482 of the Code of Criminal Procedure, for quashing the proceedings against him, but his petition was dismissed by the High Court. The petitioner had, therefore, appealed to the Supreme Court. While allowing the appeal, Their Lordships of the Supreme Court, inter alia, observed as follows :
"Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation." (para 13 of the reported judgment).
20. In the light of above facts and settled legal position, it is noted that even if a person would commit suicide because of certain acts of the accused, the accused cannot be said to have committed abetment of suicide by the deceased unless the accused would intend, while causing such acts to the victim, that he/she should commit suicide. As such, it is necessary for the prosecution to establish that by his acts, the applicant/accused could reasonably foresee that because of his conduct, the victim was almost certain or at least, quite likely to commit suicide. Unless this is established, a person cannot be charged of having abetted commission of suicide, even if, suicide has been committed as a result of some of the acts committed by the accused.
In the case of Sanju (supra), it is seen that even in the case where the accused had uttered words such as "go and die" in abusive and humiliating language which, allegedly, led to committing of suicide, it was held that it would not amount to instigation and consequently, there would be no offence of abetment of suicide.
21. In the application on hand, there is absolutely no evidence to establish that on the day of incident or immediately prior to the deceased committing suicide, applicant has instigated or abetted deceased to commit the same. In that view of the matter, applicant cannot be attributed the requisite mens rea so as to hold him guilty as abettor. This appears to be fundamental defect in the case of prosecution and it does not spell out any offence punishable under Section 305 of Indian Penal Code.
22. In the circumstances, the Criminal Revision is liable to be allowed as per following order.
23. The Criminal Revision Application is allowed.
The order dated 27th of December, 2005 passed by the Additional Sessions Judge, Buldana in Criminal Appeal No.41 of 2002 dismissing the same by confirming the judgment dated 31st of October, 2002 passed by Assistant Sessions Judge, Buldana convicting the applicant for the offence punishable under Section 305 of the Indian Penal Code is quashed and set aside.
His bail bonds stand cancelled.
Fine amount, if any, paid be refunded to the applicant.