JAGANNATH VYANKATRAO THAKARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this appeal, the appellant seeks to quash and set aside the judgment and order dated 10-4-2000 passed by 2nd Additional sessions Judge, Achalpur in Sessions Trial No. 47 of 1995 by which judg-ment and order, the present appellant has been convicted for an offence punishable under section 306 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for the period of five years and to pay a fine of Rs. 2,000/- in default of payment of fine to suffer further rigorous imprisonment for three months. The facts in brief of the case of prosecution are as follows : (A) That, the deceased Vijay Shriram Dharmale and the son of the present appellant by name; Sanjay Thakare were friends. They used to conduct business of repairing fans and coolers in a rented room taken on rent from one Vinayak Shriram Sangole. On 29-4-1995 at about 10. 40 in the morning, the present appellant is said to have hurled filthy abuses in a loud voice. He has alleged to have said, "sanjay, you do not make friendship with this fool and black complexioned fellow, instead make friendship with any boy from Mahar or Mang Community". After listening to these abuses, the deceased Vijay is said to have become very upset and committed suicide by hanging himself from the fan in the rented room where he used to conduct his business. No suicide note was found by the police in the course of investigation. The complaint was registered by the police on information given by P. W. 3 Vinod, who is nephew of the landlord. After the investigation, charge-sheet came to be filed. (B) In the course of the trial the prosecution examined four witnesses i. e. P. W. 1 Ramdas Dharmale who is cousin of the deceased, P. W. 2 Sau. Indubai dharmale, the mother of the deceased, P. W. 3 Vinod Sangole, nephew of landlord and P. W. 4 Police Sub-Inspector Sheshrao Adhau who was the Investigating Officer. The defence of the accused is of total denial. He claimed that he was not present at the time of incident and examined two defence witnesses to prove his alibi. (C) After considering the entire material on record, the learned Sessions Judge was pleased to convict the appellant and sentenced him as aforesaid.

(2.) THE contentions on behalf of the appellant can be briefly summarised as under : (a) That the first information report filed by P. W. 1 Ramdas who was sole eyewitness to the giving of abuses by the appellant in the morning of 29-4-1995, indicated that the abuses were addressed by the appellant to his son, Sanjay. The abuses were not hurled at the deceased Vijay. In this regard it was pointed out that the attempt of the witness P. W. 1 to say that the abuses were hurled at Vijay was an omission in the F. I. R. It was further pointed out that P. W. 2 Indubai had stated about her meeting with her son prior to committing suicide and telling her that he was upset because of the abuses given by the appellant was also a proved omission from her police statement. It was contended that this omission was material omission and that the trial Court had wrongly dismissed the same as exaggeration. (b) It was also contended that even if the prosecution case was accepted in its totality, yet it could not be said that the appellant had abetted the commission of the suicide within the meaning of section 107 of the indian Penal Code. In this regard, it was contended that admittedly there was no evidence of any conspiracy or intentional aiding of any act or illegal omission in the commission of suicide. Insofar as the question of instigating the deceased, it was argued that the word, "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. That, presence of mens rea was, therefore a necessary concomitant of instigation and that words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea especially when they were stated in a fit of anger and emotion. In this context, reliance was placed by the learned Advocate for the appellant on a judgment of the Apex Court in the case of (Sanju @ sanjay Singh Sengarv. State of H. P.)1, 2002 Cri. L. J. 2796. The reliance was also placed on a judgment of this Court delivered by me in Crimi-nal Appeal No. 173 of 2001 on 9-1-2003, (Bapurao Kisanrao Jamgade v. State of Maharashtra)2, reported in 2003 (1) Bom. C. R. (Cri.) (N. B. J823 : 2003 (4) Mh. L. J. 943 which judgment is essentially based upon the judgment of the Apex Court cited supra and relied upon by the learned advocate for the appellant.

(3.) ON behalf of the prosecution it was contended that the abuses which were given were very insulting and should not have been given. It was also argued that the suicide was very proximate to the giving of abuses and this itself shows that the deceased had taken the insult to heart.