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Judgment
Heard. Admit. Taken up for final disposal forthwith by consent of parties.
This revision application questions the legality and correctness of the order dated 4.11.2017 passed by the Assistant Sessions Judge, Khamgaon in
Sessions Case No. 85 of 2016. By this order, the learned Additional Sessions Judge rejected the application of the applicants, who were original
accused nos. 11 and 12, praying for their discharge from the sessions case.
The facts in brief are as follows :
Applicant no. 1, at the relevant time, was working as Deputy Superintendent of Land Records, Nandura and was holding additional charge for
Shegaon taluka while applicant no. 2 was then working as Nazul Surveyor at Nandura.
There was a family dispute between deceased Dinesh Rai on the one hand and his brothers, mother, sister and sisterÂinÂlaw on the other, over
shares in the ancestral property. The deceased felt that he was being deprived of his right to have a share in the ancestral property by the other
faction of the family. There was one property which, according to the deceased, was the ancestral property in which he had also a share, which was
sold without his consent by the other faction of the family to one Gaurishankar. This immovable property, a plot of land, was then sold by Gaurishankar
to one Mohd. Rafiq. Deceased Dinesh learnt about the sale of property which, according to him, was illegal. He also learnt about the mutation entries
having been taken in the revenue record in the name of Gaurishankar and then in the name of Mohammad Rafiq. He, therefore, filed his objection to
the mutation entries so taken by Shegaon Revenue Office. Upon receipt of the objection of the deceased, a notice under Section 150 (2) of the
Maharashtra Land Revenue Code read with Rules 14 and 24 of the Rules framed thereunder was issued by the applicants to Gaurishankar and
Mohammad Rafiq to show cause as to why the objection be not accepted.
It appears that the parties appeared before the applicants and submitted their respective say. On 20.10.2015, overruling the objection, a mutation entry
was taken in the name of Mohammad Rafique as a purchaser of the plot from Gaurishankar by the order passed by applicant no. 1 with the help of
applicant no. 2.
Deceased Dinesh was very much upset over the decision taken by these applicants. After all, the decision had gone against him. By that time, one
civil suit was also filed by deceased Dinesh against the members of other faction of the family claiming his share in the ancestral property left by his
father Shankarlal Rai as he felt betrayed by his brother, other relatives and applicants. It appears that for a period of about one week, deceased
Dinesh was upset after the adverse order was passed.
On 27.10.2015, deceased left his house for going to his flour mill. At about 07.00 pm, one of the servants of the deceased came running to the house
of deceased. He informed the wife of deceased that the deceased committed suicide by hanging himself on a rope in one Lodge by name Vishranti
Lodge.
A suicide note had been left by the deceased. In the suicide note, the deceased had put the blame upon the members of the other faction of the family
and also on these applicants and one more person, Mohammad Rafique for his suicide. Widow of the deceased went to the Police Station at about
11.15 pm of the same day and lodged a report against all these persons. An offence punishable under Section 306 read with Section 34 of the Indian
Penal Code was registered against all the accused including these applicants.
After committal of the case to the Sessions Court for its being tried in accordance with law, both these applicants, contending that they had done only
their official duty and nothing more, filed an application for their discharge from the case. After hearing both the sides, the application was rejected by
the Assistant Sessions Judge, Khamgaon. Feeling aggrieved, the applicants are now before this Court in the present revision application.
Shri Anil Mardikar, learned Senior Advocate submits that whatever has been done by the present applicants in this case is only in discharge of their
official duty and nothing more. He submits that there are no circumstances brought on record to establish even in a prima facie manner, essential
ingredients of the offence of abetment of suicide as far as these applicants are concerned. According to him, there has been neither any mens rea nor
any instigation, as contemplated under Section 107 of the Indian Penal Code on the part of any of these applicants. He further submits that these basic
parameters have not been considered in any manner by the learned Assistant Sessions Judge and as such, he has committed a patent illegality as well
as perversity by rejecting the application of the applicants seeking their discharge. This has been disagreed to by learned Additional Public Prosecutor
for nonÂapplicant State.
On going through the First Information Report, the suicide note of the deceased and other material, one is convinced that there is a great substance
in the argument of learned Advocate for the applicant and no merit in the submissions of learned Additional Public Prosecutor.
Section 107 of the Indian Penal Code defines “abetmentâ€. It comprises three components. One is of instigation. The other is of engagement
with one or more persons in any conspiracy for doing an illegal thing or act or omitting to do a legal thing. The third one relates to what is called as
intentional aiding by any act or illegal omission, the doing of a thing. In the present case, the nature of allegations indicates that the applicants are
sought to be prosecuted on the basis that the applicants instigated the deceased to commit suicide. As such, let us now consider the law on the issue of
instigation contemplated under Section 107 of the Indian Penal Code.
In the case of Sanju alias Sanjay Singh Sengar v. State of M. P. reported in (2002) 5 SCC 371, the Hon'ble Supreme Court has clarified that the
word “instigate†denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite another person to do a particular
thing which otherwise he would not have done it. It is also held that presence of mens rea is a necessary concomitant for instigation.
In the case of M. Mohan v. State represented by The Deputy Superintendent of Police reported in (2011) 3 SCC 626, the Hon'ble Supreme Court
held that abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. It held that there should be clear mens rea
to commit offence under Section 306 of the Penal Code. It further held that it requires commission of direct or active act by the accused leading the
deceased to commit suicide seeing no other option. It clarified that such an act must be intended to push the victim into a position where he feels
compelled to commit suicide.
In the case of S. S. Cheena v. Vijay Kumar Mahajan & anr reported in 2010 ALL MR (Cri) 3298 (SC), the Hon'ble Supreme Court held that in
order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence and that it requires an active participation or
some act which leads the deceased to commit suicide and that the act must have been intended to push the deceased into such a position that he
commits suicide. It held that each person has his own idea of selfÂesteem and selfÂrespect and, therefore, it is impossible to lay down any straitjacket
formula in dealing with such cases. It added that human sensitivity of each individual differs from the other and that different people behave differently
in the same situation. Therefore, what would amount to “instigation†within the meaning Section 107 would be a question of fact and will have to
be decided on the basis of the facts and circumstances available on record.
From the law so discussed above, it is quite clear that in order that there is an abetment of suicide, there must be creation of some compelling
situation by the accused which would make the deceased perceive that whatever he might do, he would not get any relief and that in order to get
away from the situation created by the accused and there being no effective alternative available, he must take the extreme step of putting an end to
his life. The situation in which the deceased is pushed into by the accused must be of such a nature as is sufficient to make any person of ordinary
prudence to feel desperate and helpless about and disgusted with human affairs It is from such a situation and such a state of mind of the deceased,
the mens rea, the capable state of mind of the accused in instigating the deceased to commit suicide, can be inferred. In other words, creation of
desperate, helpless and impossible situation for the deceased by the accused is what constitutes the offence of abetment of suicide by instigative
tactics of the accused and also is what makes up the means rea of the accused. However, mens rea of the accused cannot and must not be judged by
the standard of a victim who is overÂsensitive. It has to be seen by applying the standard of a man of average prudence. Sometimes a person who
commits suicide is sensitive or even hyperÂsensitive and a slightest provocation to him is sufficient for him to commit suicide. Such sensitivity or hyper
sensitivity is not something which should be taken into account for determining as to whether or not there is any instigation on the part of the accused.
Applying these principles of law to the facts and circumstances of this case and taking them at their face value, without adding anything to them or
subtracting anything therefrom, I find that these applicants had only performed their official duty. If it was the opinion of the deceased that these
applicants discharged their duty in an illegal manner or may be even for an extraneous consideration, no heavens fell. In such a situation, several
remedies were available to the deceased to redress the grievance Admittedly, a civil suit was already pending at that time in which the deceased was
a party and as such, he could have raised this issue in it. Remedy of appeal as againt the order passed by the applicants, admittedly, was also available
in law, which was the Maharashtra Land Revenue Code. It is common knowledge that generally all litigants fighting for their property rights are given
to understand by their lawyers that revenue entries are only for fiscal purposes and no title is decided on the basis of the same. If the deceased had
taken some legal advice, perhaps he would have got some solace after knowing from his lawyer the legal position on mutation entry. It appears that he
did not consult his Advocate as there is no mention anywhere in the material available about the consultation and consequent advice. If the deceased
suspected that the applicants were influenced by some extraneous consideration, remedy of lodging complaint with the Anti corruption Bureau was
also available to him. The alleged adverse decision was rendered on 20.10.2015 and the suicide has been committed on 27.10.2015. There was a
considerable gap between the date of the adverse decision and the date of commission of suicide. During this interregnum and looking to the facts
available on record, one can see that the deceased did not resort to any of the remedies avilable to him to relieve himself of the agony and stress that
he underwent after the adverse decision was rendered by the applicants. There was sufficient time available to him and he could have utilized this
time in approaching the law in order to get over his pain. But, he did not do so and it appears that he simply kept sulking within so much so that
ultimately it led to his developing a disgust for life. This situation, I must say, was his own creation and not of the applicants and thus makes the
essential requirement of the offence of abetment by intentional instigation go missing.
These facts and circumstances reveal that the deceased was a person having hyper sensitive mind and that was the reason why he took the
extreme step of putting an end to his life instead of fighting for justice by taking recourse to so many legal remedies and options available to him. The
act of commission of suicide, therefore, was an independent act of the deceased having no nexus with the applicants. In any case, the performance of
discharge of official duty by the officers of the State, rightly or wrongly, cannot be considered as something constituting mens rea to abet the
commission of suicide by the person affected by the discharge of official duty. If the discharge of official duty is to be taken as amounting to
instigating a person affected or aggrieved by it to commit suicide, it would become very difficult for the Government officers and authorities to
perform their duty without fear or favour. This is neither the purport nor the object nor the purpose of law of the abetment of suicide. It appears, these
basic features of the law relating to abetment of suicide have not been taken into consideration by the learned Additional Sessions Judge while passing
the impugned order in this case.
The facts and circumstances discussed in the previous paragraphs would sufficiently indicate that what the applicants did was only by way of
discharge of their official duty. If it was considered as illegal or wrongful discharge of their duty by the applicants, the deceased could have very well
approached the law to challenge the decision rendered by the applicants. If the deceased did not do so and committed suicide, in my view, it could not
be considered to be something resulting from an act actively performed by the applicants with an intention that the deceased should commit suicide so
as to be called “instigation†within the meaning of Section 107 IPC. The essential ingredients of offence of abetment of suicide punishable under
Section 306 read with Section 107 IPC having been not present since day one in this case, as seen from the facts available on record and taken at
their face value, I am of the view that there are no grounds available on record to proceed further in the matter against any of these applicants. The
application filed by them seeking their discharge deserves to be allowed by quashing the impugned order.
Revision Application is allowed. The impugned order is quashed and set aside. Discharge application (exhibit 41) is allowed. Both these applicants
(original accused nos. 11 and 12) are hereby discharged from the case.