1. By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicants – original accused seek quashing of the first information report registered vide Viramgam Rural Police Station I-C.R. No.8/2010.
2. The respondent No.3 – first informant lodged the above referred first information report alleging commission of the offences punishable under sections 306 and 114 of the Indian Penal Code, which has given rise to the present application under section 482 of the Code.
3. Mr. Digant Joshi, learned advocate for the applicants invited attention to the allegations made in the first information report to submit that on a reading of the first information report in its entirety, no offence as alleged under section 306 I.P.C. can be stated to have been made out. It was submitted that the allegations are to the effect that the applicants herein had told the deceased to refrain from maintaining illicit relations with the wife of the applicant No.1 – Jignyasa failing which they would finish him off. This incident is stated to have taken place on Satam – Aatham which fell on 14th August, 2009 of the relevant year. That thereafter, the applicant No.1 herein had called the elder brother of the first informant who had come to visit him and told him to make the deceased Bhogilal understand that he should not keep illicit relations with his wife, otherwise things would not be good. That on Dusshera i.e. 28th September, 2009, the first informant's elder brother and his wife had left for Ahmedabad and he and his wife were going towards Vaghada village where he was serving and had returned to their village Rahemalpur at around 6 p.m. That at about 6.30 p.m., Nagarbhai Lavjibhai Makwana residing in the faliya informed them that their son had called from Ahmedabad stating that he was at the place of the applicant No.1's in-laws and that he (the first informant) was required to go with him (Nagarbhai) to Ahmedabad. Therefore, he, his wife and his son went alongwith Nagarbhai to Ahmedabad and reached there at about 10 p.m. where both the applicants and the in-laws of the applicant No.1, his wife Jignyasa, his son Bhogilal, his elder brother and his wife were also present. Thereafter, they had taken his son Bhogilal back with them. At that point of time again, the applicant No.2 had asked him to make Bhogilal understand, else they would kill him and throw him in the gutter. Mr. Joshi submitted it is the case of the first informant that after this incident he had sent his son to live with his maternal uncle and he was coming to Rahemalpur once in a week. That on 31st December, 2009, his son had come at around 9 o'clock whereupon he had asked him why he had come. In reply to which, he had said that he had come to give his salary. That on the next day, at around 8 o'clock, his son had left for Vaghada and in the evening when he called his brother-in-law, he was told that he had not reached there. That later on, on 3rd January, 2010, when they had gone in search of their son, they were told that a dead body was found in the canal and it was found that the dead body was of his son Bhogilal. Mr. Joshi submitted that thus, from the allegations made in the first information report the last incident that had occurred was on the day when they had all met at Ahmedabad on the day after Dusshera, that is, on or about 29th September, 2009, where after, the applicants herein had no occasion to meet deceased Bhogilal. That Bhogilal expired on or about 31st December, 2009 and that there is nothing in the first information report to show that between 29th September, 2009 to 31st December, 2009 the applicants herein had, in any manner, threatened Bhogilal or had even met him. It was submitted that under the circumstances, the allegation that Bhogilal had committed suicide on account of threats meted out by the applicants herein is false and absurd. It was submitted that for the purpose of falling within the ambit of section 306 IPC, there should be an unlawful act or omission which would amount to instigation by the applicants in the commission of suicide by the deceased. It was submitted that in the facts of the present case, no incident has taken place for a period of about two months or so, between the last day when the applicants had met the deceased, till his death. Under the circumstances, there being no proximity between the last date of the incident and the commission of suicide by the deceased, the ingredients of section 306 I.P.C. clearly do not exist. In support of his submission, the learned advocate placed reliance upon a decision of this High Court in the case of A.K. Chaudhary vs. State of Gujarat, 2005 (3) G.L.H. 444. It was further submitted that the first information report has been filed after a period of twelve days from the day when the deceased committed suicide and no explanation has been given in the first information report for late filing thereof. It was urged that under the circumstances, since no offence as alleged can be stated to have been made out against the applicants herein, the continuance of proceedings against the applicants would amount to an abuse of the process of court and as such, the first information report deserves to be quashed and set aside.
4. Despite the fact that the respondent No.3 is represented by a learned advocate, the learned advocate has not chosen to remain present when the matter was being heard. However, the respondent No.3 has filed an affidavit-in- reply wherein the reasons for late filing of the first information report have been set out. According to the respondent No.3, the averments made in the first information report make the entire picture clear and that though the same is filed later in point of time by nine days, the allegations made in the first information report are sufficient for rejecting the present application. The case of the respondent No.3 in the affidavit-in- reply is that though the offences have been registered on 12th January, 2010 till date, the applicants herein have not been arrested by the police nor have they surrendered themselves to the investigating agency which shows their mala fide intention and oblique motive not to support the investigating agency even after committing such a heinous crime under section 306 IPC.
5. Ms. Krina Calla, learned Additional Public Prosecutor appearing on behalf of the respondents No.1 and 2, opposed the application submitting that on the basis of the allegations made in the first information report, the offence alleged is clearly made out and as such, when the first information report itself discloses a clear offence, there is no warrant for intervention in exercise of powers under section 482 of the Code.
6. In the backdrop of the aforesaid facts and contentions, for the purpose of ascertaining as to whether or not an offence has been made out on the allegations made out in the first information report, it would be necessary to refer to the contents of the first information report.
7. The case of the respondent No.3 – first informant in the first information report is that on the previous Satam – Aatham (14th August, 2009), his son Bhogilal had come to Rahemalpur from Ahmedabad and at that time, Rajubhai Nagarbhai Makwana and Ishwarbhai Nagarbhai Makwana who were residing in their faliya, both had called his son and told him that he was maintaining illicit relations with his wife (Rajubhai's wife) and that he should go away else they would finish him off. On the next day, his son left Rahemalpur for going to his hostel where he was staying. Thereafter on the 8th day of Navratri, his elder brother Dalpatbhai Punjabhai who was residing at Ahmedabad had come to his house for celebrating Aatham. At that time, Raju Nagar Makwana had called his brother and told him to make his younger brother Nathabhai's son Bhogilal understand that he should not maintain illicit relations with his wife otherwise things will not be good. That on the day of Dusshera, his brother had left for going to Ahmedabad. Raju Nagar and his wife also left for Ahmedabad and he and his wife both went to his place of service at Vaghada village. In the evening at 6 o'clock when they returned to Rahemalpur at that time at about 6.30 Nagarbhai Lavjibhai Makwana who was residing in their faliya called him and told him that his son had made a phone call from Ahmedabad and informed him that his son Bhogilal was at Odhav at Raju's in-laws' house. So he was required to go there along with Nagarbhai. Therefore, he, his wife and son Ashwin went with Nagarbhai Lavjibhai to Ahmedabad and reached there at about 10.30. Since Raju Nagar's father-in-law was residing at Odhav, they had gone to his house and there Ishwarbhai Nagarbhai, Ishwarbhai Nagarbhai's brother-in-law Pravinbhai Hirabhai Solanki, Jignyasa's parents and Raju Nagar and his son Bhogilal as well as his elder brother Dalpatbhai and his wife were present. That thereafter they had taken his son and returned back. At that time, Ishwarbhai Nagarbhai had told them that they should make Bhogilal understand otherwise they would kill Bhogilal and throw him in the gutter. They had taken their son and had gone to Saijpur where his elder brother was residing and on the next day, his son Bhogilal had gone to his hostel to fetch his luggage and they had returned to Rahemalpur. Thereafter on the next day, the first informant felt that if Bhogilal remains at his house, Raju Nagar and others might beat him and on account of such fear, he left his son at his maternal uncle Baldevbhai's house at Vaghada, taluka Dasada and thereafter he was staying there and doing labour work and at times was coming to Rahemalpur.
7.1 On 31st December, 2009, at night, his son Bhogilal came at about 9 o'clock and they had returned from their fields and asked him as to why he had come, whereupon he had said that he had come to give his wages. On the next day at about 8:15, his son Bhogilal left for Vaghada village and on the same day in the evening he had called up his brother-in-law Govindbhai and asked him whether Bhogilal had reached there, whereupon Govindbhai told him that Bhogilal had not yet reached there. On the next day also, they called up his brother- in-law and he was told that Bhogilal has not yet returned. Hence, they had started looking for Bhogilal in their village and inquiring about him from their friends and relatives. However, there was no news about him. On 3rd January, 2010, in the morning at about 10 o'clock, he, his wife and son were going from Rahemalpur to his in-laws' house at Vaghada to look for his son Bhogilal, but he was not found hence they were returning back. While returning to Rahemalpur, when they reached Rahemalpur Char Rasta at about 4 o'clock Dhanabhai Gandabhai Thakor, a chowkidar of the sim of the village told them that a boy has been found dead in the canal. Hence, he and his wife immediately went to the canal and saw that their son Bhogilal was lying there in a dead condition and that blood and foam was coming out of his mouth. It is in these circumstances that the respondent No.3 – first informant has lodged the first information report stating that Rajubhai Nagarbhai Makwana and Ishwarbhai Nagarbhai Makwana on a false suspicion that his son Bhogilal was maintaining illicit relations with Jignyasa, wife of Raju Nagar, had threatened him to go away from the village and that his son being scared of such threats had brought an end to his life by committing suicide.
8. Thus, on a reading of the first information report in its entirety, there are two incidents where the applicants herein are alleged to have been in direct contact with deceased Bhogilal. Firstly on satam – aatham, when Bhogilal had come to Rahemalpur at which point of time both the applicants are alleged to have called him and told him that if he maintains illicit relations with Jignyasa, they would finish him off. The second incident is on or about 29th September, 2009, that is, on the day after Dusshera when the first informant and his family members had gone to Ahmedabad to the house of the in-laws of the applicant No.1 and while they were returning, the applicant No.2 herein had asked them to make their son understand failing which they would kill him and throw him in the gutter. Thus, the last incident is alleged to have taken place on or about 29th September, 2009. Thereafter, in the entire first information report, there is no allegation of any incident having taken place till 31st December, 2009 when the deceased committed suicide. Thus, except for the above two incidents when the applicants are said to have threatened the deceased not to maintain illicit relations with the wife of the applicant No.1, no further incident appears to have taken place from 29th September, 2009 to 31st December, 2009, that is, for a period of almost three months. On the day when the deceased committed suicide, no incident had taken place immediately prior thereto whereby the applicants could be said to have instigated the deceased so as to induce him to commit suicide.
9. The Supreme Court in the case of Netai Dutta vs. State of W.B., (2005) 2 SCC 659, has held that an offence under section 306 I.P.C. would stand only if there is an abetment for commission of the crime. The parameters of the abetment have been stated in section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, or instigates any person to do that thing; or engages with one or more 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, or the person should have intentionally aided any act or illegal omission. The facts of the present case have to be examined in the light of the provisions of section 306 read with section 107 I.P.C. The question that then arises is whether on the allegations made in the first information report it can be stated that the deceased was instigated by the applicants herein to commit suicide. The Supreme Court in the above referred decision has held that the word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea.
10. In the facts of the present case, the only two incidents which have taken place are far between the date of the said incidents and the date of commission of suicide by the deceased and, as such cannot be said to constitute incitement as envisaged under section 107 I.P.C. It is apparent that there was no proximate cause of action for the deceased to commit suicide, the last incident having taken place in September, 2009. It may be that the deceased being in love with the wife of the applicant No.1 might be depressed with the fact that he is not in a position to maintain relations with her and might have committed suicide for that reason. The mere fact that the applicants herein had asked him to stay away from the village and not to maintain illicit relations with the wife of the applicant No.1 cannot in any manner constitute instigation as contemplated under section 107 IPC so as to be the cause of suicide by the deceased as envisaged under section 306 I.P.C. In the circumstances, it cannot be said that any offence of abetment of suicide as contemplated under section 306 of the I.P.C. has been made out on a plain reading of the first information report.
11. It is settled legal position that while considering an application under section 482 of the Code, the court is required to examine the allegations made in the first information report and accepting the same to be true examine as to whether or not the offence as alleged can be stated to have been made out. As discussed hereinabove, on a reading of the first information report in its entirety, and accepting the averments made therein to be true, no offence under section 306 read with section 114 of the Indian Penal Code can be stated to have been made out. Under the circumstances, this is a fit case for exercise of inherent powers under section 482 of the Code for quashing the first information report.
12. For the foregoing reasons, the application succeeds and is accordingly allowed. The first information report registered vide Viramgam Rural Police Station I-C.R. No.8/2010 for the offences punishable under section 306 and 114 I.P.C. is hereby quashed and set aside. Rule is made absolute accordingly.
( Harsha Devani, J. ) hki