Leave to amend prayer clause of Criminal
Application No.621/2011. Amendment to be carried out
forthwith.
2. Rule. Rule is made returnable forthwith.
Heard finally by consent of parties.
2 265.11-revn--
3. By way of present revision application and
criminal application, the applicants have approached
this Court being aggrieved by the common order passed by
learned Assistant Sessions Judge, Nasik dated 12th May
2011. Both applicants are accused in Sessions Case No.
46/2007. The applicant in Revision No.265/2011 is
accused No.2 whereas applicant in Criminal Application
No.621/2001 is accused No.1. They are facing trial for
the offence punishable under section 306 read with
section 34 of the Indian Penal Code (I.P.C.). The
applicants had filed application for discharge before
the Sessions Judge. However, the learned Sessions Judge
vide order dated 12th May 2011 has rejected the said
application.
4. The applicant- Dr.Mrs.Seema Ajay Bhoosreddy is
working as Professor in MGV Dental College and Hospital,
Nashik. She is teaching the subject of oral surgery.
The other applicant- Dr.Nitin Hemchandra Dani is a
Professor and Head of Department of Peridontology in the
same Dental College. The deceased Sneha Dandale was a
student studying in last year of BDS course. The
deceased committed suicide on 10th December 2005 and on
the basis of the complaint of Shri Anil Ratnakar
Dandade, the father of the deceased alleging therein
that the present applicants and other doctors had
targeted the deceased and asked her to complete the
difficult course within a short time and had threatened
her, she committed suicide, an F.I.R. came to be
registered. After filing of the charge-sheet, the case
3 265.11-revn--
was committed to the Sessions Court. Since, according
to the applicants, from the material placed in the
charge-sheet, the ingredients to constitute offence
punishable under section 306 were not made out, they
filed application for discharge. The same was rejected.
Hence the present applications.
5. Shri Mundargi, learned senior counsel
appearing for the applicant in Criminal Revision
Application No.265/2011 submits that taking allegations
in the various statements recorded by the prosecution on
its face value, it cannot be said that the prosecution
is in a position to point out any act which would amount
to instigation, aid or abetment by the applicant to the
deceased Sneha to commit suicide. He submits that the
material placed on record by the prosecution is not of
such a nature which even at, prima facie stage, would
establish a mens rea, which is one of ingredients to
constitute offence under section 306 of I.P.C. Learned
counsel relies on the judgment of the Apex Court in the
case of Madan Mohan Singh v. State of Gujarat, (2010)
8 SCC 628 and in the case of S.S.Chheena v. Vijay
Kumar Mahajan, 2010 ALL MR (Cri.) 3298 (SC).
6. Shri Palwe, learned counsel appearing for the
applicant in Criminal Application No.621/2011 has
adopted the submissions made by Shri Mundargi.
7. Shri Nakhwa, learned A.P.P. appearing for the
State vehemently opposed both applications. He submits
that the prosecution has collected sufficient material
to establish the complicity of the present applicants in
4 265.11-revn--
the offence punishable under section 306 and, therefore,
submitted that no inference is warranted with the
impugned order.
8. In support of the prosecution case, the
prosecution has recorded various statements including
those of the students and other teachers.
9. One Kumari Vedavati Suhas Gadre was the room-
mate of the deceased Sneha. In her statement she has
stated that on 9th December 2005, at around 9.00 a.m.,
applicant- Dr.Bhoosreddy and her assistant Kedar Apate
were taking oral examinations. She has stated that
Dr.Bhoosreddy was taking oral examination of Sneha and
Madhvi Gandhile. After about 5 to 10 minutes Sneha
came out after giving examination. At that time it was
noticed that she was nervous. She has further stated
that Sneha started writing by sitting in her place. She
has further stated that after sometime she was called
for interview and, therefore, she went to Bhoosreddy
madam. She has further stated that Bhoosreddy madam
took Sneha's paper and examined it and, thereafter, in
an annoyed voice said "what is written" and handed over
the said paper to Gauri Madam and and Mule Sir. She
has further stated that at about 12.30 to 12.35 p.m. she
went to her room where she noticed that Sneha was
writing the course while crying. She states that though
she insisted her to come for lunch, Sneha refused to
come. On being asked as to whether she should get
anything to eat, Sheha refused. She has further stated
that at around 1.30 to 1.45 p.m. She along with Sneha,
Rahul, Jigna went to Dr.Dani for submitting
5 265.11-revn--
assignment. However, since they did not give it prior
to 12.30, he asked them to get it next day prior to 8.30
a.m. She has stated that thereafter both of them came
to hostel and were studying in the room till around 6.00
p.m. She then insisted Sneha to come for tea, however,
she refused. She further states that, therefore, she on
her own brought tea for Sneha and compelled her to take
tea. She stated that at that time Sneha appeared to be
under great tension. She has further stated that
noticing this, she informed this to one Abhishek
Barmeda, who had brotherly relations with Sneha, on his
mobile. She has further stated that Abhishek asked her
to get Sneha when she would get down to get the tiffin
from the mess. She has further stated that thereafter
Abhishek telephoned Sneha on her mobile. From the talk
she could gather that though Abhishek was insisting
Sneha to meet him, she was reluctant, however, at the
instance of Abhishek she went outside. She has stated
that thereafter she went out to get tiffin from the
mess. When she returned back, Sheha was yet to come
back. Sneha returned back at about 8.35 p.m. and
appeared to be normal. Thereafter, Sneha also had her
dinner. She has stated that after that Sneha told her
and one more friend Megha Satpute that Bhoosreddy madam
asked her to write 12 questions on 5-5 times. That she
took her examination under anger and asked the
questions in a very loud voice. She has stated that
Sneha then told that she will not come to the department
tomorrow. Vedavati has further stated that after Sneha
went to slip, she noticed that Sneha had written a note
on the full scape paper; wherein it was written "Pappa,
I am sorry. I have failed" etc. She has further
6 265.11-revn--
stated that since Sneha was in the habit of writing
poem, articles, etc. she did not give much importance to
it, however, by way of abundant precaution she informed
the same to Abhishek and Abhishek informed her not to
disturb Sneha and be with her. She then took custody
of the said chit as per the instruction of Abhishek.
She has further stated that at about 2.30 p.m. Sneha got
up but she told her to sleep and that she would wake her
up at 5.00 o'clock.
Vedavati has further stated that Sneha got up
at around 5.00 a.m. At around 6.00 to 6.15 she took
her bath and returned to the room and woke her up for
taking bath. When she asked Sneha to accompany her for
submitting assignment, she said that her assignment was
not complete and let whatever happen and will see on
Monday. She has stated that since Sneha refused to
come, she alone went to submit assignment to Dr.Dani.
She has further stated that at around quarter to nine
a.m, Jigna came to her and told her that Sneha is not
opening the room. She informed this to Rector madam
Salunkhe. All of them went to the room of Sneha.
Since the door was not being opened, people from the
Maintenance Department were called. She has stated that
since she was afraid, Khedkar madam took her to the
Microbiology Department. Thereafter she came to know
that Sneha had committed suicide by hanging.
10. The statement of one Kumari Ulka Lokesh Phule
was also recorded. She is said to be accompanying the
deceased Sneha on 9th December 2005 when the oral
interview was taken by Dr.Bhoosreddy. She has stated
that at that time she heard Madam (i.e. the applicant-
7 265.11-revn--
Dr.Bhoosreddy) shouting at Sneha that if she was not
knowing the answer then she should not have written
anything which was incorrect. She has further stated
that Dr.Bhoosreddy then handed over the said paper to
Dr.Gauri. Sneha, at that time, was crying. In so far
as applicant- Dr.Dani is concerned, she has stated that
she went to Dr.Dani at about 12.30 along with other
student, however, since the assignments were not
submitted prior to 12.30 Dr.Dani gave them punishment to
repeat the same assignment once again.
11.
Another relevant statement would be that of
Abhishek Dwarakadas Barmeda who is said to have
brotherly relations with deceased Sneha. He has stated
about Vedavati telephoning him regarding Sneha's
nervousness and thereafter he telephoning Sneha to meet
him outside the hostel. He has stated that when he met
Sneha, she informed him that in the Oral Surgery
Department, at the time of oral examination,
Dr.Bhoosreddy madam was very much annoyed. That she
insulted her in front of everybody. That she asked her
to write the answers of the test papers five times and
chapter on fracture, ten times and, therefore, she was
under tension. So far as other applicant- Dr.Dani is
concerned, he has stated that Sneha had informed him
that when she went to Dr.Dani at about 1.30 p.m. to
submit assignment she was told by Dr.Dani that she was
called prior to 12.30 and, therefore, gave her a
punishment to repeat the assignment. He has stated that
during all this period Sneha was crying. He then
consoled her and calmed her. He also told her to write
whatever is possible and, if anything remain, let it be
8 265.11-revn--
and that she should not worry. He has further stated
that Sneha told him that she would not go to the Oral
Surgery Department. That if she goes there
Dr.Bhoosreddy madam will again insult her. He has
stated that Sneha had told him that she wanted to go
home and then he assured her to accompany her upto
railway station and, thereafter, she became normal. He
has further stated that at about 8.35 p.m. Sneha went to
her room and he went to his hostel. He has further
stated about his receiving a call at about 1.30 p.m.
from Vedavati regarding a note written by the deceased.
He has stated that on the date of incident he received a
sms on his mobile at around 7.45 a.m. from Sneha
"brother pardon me". That it was stated in the said
message, "I could not write as told by you. I am still
writing. Take care. We will meet". He has stated that
he then sent a message to Sneha that time-table is not
more important and that she should take her care and she
should not frighten.
12. The prosecution has also recorded statement of
Dr.Gauri Panse, who was working in the unit of
Dr.Bhoosreddy. She has stated that on 9th December 2005,
Dr.Bhoosreddy was taking oral examination of the
students. She has further stated that Dr.Bhoosreddy
called her and showed the paper of Sneha on the subject
of Oral Surgery and said her to read Sneha's paper and
tell her as to what she should to. She has further
stated that at that time Dr.Kishor Mule told Sneha that
if she had any difficulty she can go to Panse Madam and
take her guidance. She has further stated that Sneha
was crying and, therefore, she came to know that Sneha
9 265.11-revn--
had not given correct answer at the time of oral
examination and, therefore, Dr.Bhoosreddy madam got
annoyed and asked her to write the answers of the test
papers for five times.
13. Dr.Kishor K. Mule, who was working as Lecturer
in the Department of Oral Surgery of the said medical
college, has stated that on 9th December 2005 since oral
examinations were being conducted he was present along
with other staff members. Dr.Bhoosreddy came sometime
after oral examination was started. He has stated that
while Dr.Bhoosreddy madam was taking oral examination of
Sneha, she called him and told him to see paper of Sneha
on the subject S.A.Q. of first session and told that
Sneha does not know anything and asked him to give "C"
grade to her and gave that paper to him. He has
stated that he noticed that on various places the
answers were marked as wrong. He has further stated
that he asked Sneha about that. She said that answer of
the question on Indications on Isake tummy was on 4 to 5
issues. Out of that regarding issue of ceramic crown,
Sneha told that it was correct and, therefore, she was
asked to get the book. The book, which was brought by
her was written by Shri Malik. He found that the answer
given by Sneha to the said issue was correct as per the
said book. Then he gave that paper to Gauri and
recorded "C" grade on the records of oral surgery. He
has further stated that when he was taking examination
of other students, Dr.Gauri came to him and told him
that Madam has asked her to give guidance to Sneha.
However, Sneha did not come to her and told her
difficulties. He has stated that, therefore, he called
10 265.11-revn--
Sneha and told her that it was her last year, that there
were six months left for final examination and,
therefore, she should take his guidance and will get
complete assistance in her studies. That Dr.Gauri Panse
would also guide her. He has stated that at that time
Sneha appeared to be frightened.
14. It is also relevant to refer to the suicide
note of the deceased. The relevant part thereof reads
thus:
ig "I am SORRY Pappa, I failed! I
think I do not deserve watever love &
affection I got from everybody neither
am I capable to take any more.
I am guilty. I do not blame
anybody for my WORST PERFORMANCE.
SORRY MA'M!
I know you are taking all these
steps for our benefit & betterment but I
am not in a position to face the world
anymore. I am ashamed of myself.
I am going from this world &
would like to request everybody
specially all my FRIENDS to please do
not lose hart because of me & I want
that everybody of you work hard excel
and show the authority that "WE" are not
useless & that we are not cows & bulls
as that they keep on torchering us.
I am SORRY GAURI because of me
you had to face them & was just I am
also sorry for the embarrassment you had
to undergo. Now you are set free.
SORRY again.
I love you ALL MY FRIENDS &
please forgive me for my this ACT.
I am sorry Veda, Luv you take
care! Sorry Abhishek, you are the BEST
BHAI of the universe. Take care!
Rani,
You please take care of
11 265.11-revn--
yourself. I love you the most in this
whole world. I know the world is very
cruel but I also know that you are my
strong sister. My last wish is that you
succeed in all walks of life & show
everyone that you are my best sister.
RESPONSIBLE ANYBODY FOR MY CONSEQUENCE.
I HAVE LOST AND TOTALY GIVEN
UP.
Oh GOD please take me with you!
Everybody will think that I am made and
that I do not have any guts. But thats
not true. I am doing this 'coz I tried
my level best, I want to do better but
destiny always plays a bad game with me.
I wanted to live but I think I
do not deserve to live.
15. It can, thus, be seen that the allegations as
against applicant- Dr.Bhoosreddy as could be gathered
from the statements of the students as well as the
teachers, are to the following effect. At the time of
conducting oral examination of Sneha, she got annoyed
because of the wrong answers given by Sneha and she
scolded her in front of everybody. It can further be
12 265.11-revn--
seen that further allegation is that she had asked Sneha
to write the answers of the test paper five times and
the chapter of fracture ten times. In so far as Dr.Dani
is concerned, the only allegation is made that since the
assignment was not submitted prior to 12.30 p.m., by way
of punishment, he had asked her to repeat the same
assignment.
16. In the case of Madan Mohan Singh (cited
supra), the petitioner was working as a DET in Bharat
Sanchar Nigam Ltd. The deceased i.e. Deepakbhai
Krishnalal Joshi has committed suicide. On the basis
of complaint filed by his wife, an FIR came to be
registered. The petitioner had applied for discharge.
The trial Court rejected it. The Gujarat High Court
upheld the order of the trial Judge. Being aggrieved
thereby the petitioner has approached the Apex Court.
The prosecution heavily relied on the suicide note
of the deceased wherein it was stated that the
petitioner was responsible for his death. The Apex
Court negating the contention on behalf of prosecution
observed thus:-
"10. We are convinced that there
is absolutely nothing in this suicide
note or the FIR which would even
distantly be viewed as an offence much
less under Section 306 IPC. We could
not find anything in the FIR or in the
so-called suicide note which could be
suggested as abetment to commit suicide.
In such matters there must be an
allegation that the accused had
instigated the deceased to commit
suicide or secondly, had engaged with
some other person in a conspiracy and
13 265.11-revn--
lastly, that the accused had in any way
aided any act or illegal omission to
bring about the suicide.
11. In spite of our best efforts
and microscopic examination of the
suicide note and the FIR, all that we
find is that the suicide note is a
rhetoric document in the nature of a
departmental complaint. It also
suggests some mental imbalance on the
part of the deceased which he himself
describes as depression. In the so-
called suicide note, it cannot be said
that the accused even intended that the
driver under him should commit suicide
or should end his life and did anything
in that behalf. Even if it is accepted
that the accused changed the duty of the
driver or that the accused asked him not
to take the keys of the car and to keep
the keys of the car in the office
itself, it does not mean that the
accused intended or knew that the driver
should commit suicide because of this.
12. In order to bring out an
offence under Section 306 IPC specific
abetment as contemplated by Section 107
IPC on the part of the accused with an
intention to bring about the suicide of
the person concerned as a result of that
abetment is required. The intention of
the accused to aid or to instigate or to
abet the deceased to commit suicide is a
must for this particular offence under
Section 306 IPC. We are of the clear
opinion that there is no question of
there being any material for offence
under Section 306 IPC either in the FIR
or in the so-called suicide note.
13. It is absurd to even think
that a superior officer like the
appellant would intend to bring about
suicide of his driver and, therefore,
abet the offence. In fact, there is no
nexus between the so-called suicide (if
14 265.11-revn--
at all it is one for which also there is
no material on record) and any of th
alleged acts on the part of the
appellant. There is no proximity
either. In the prosecution under
Section 306 IPC, much more material is
required. The courts have to be
extremely careful as the main person is
not available for cross-examination by
the appellant-accused. Unless,
therefore, there is specific allegation
and material of definite nature (not
imaginary or inferential one), it would
be hazardous to ask the appellant-
appellant in the present case who is
serving in a responsible post would
certainly suffer great prejudice, were
he to face prosecution on absurd
allegations of irrelevant nature. In
the similar circumstances, as reported
in Netai Duta v. State of W.B., this
Court had quashed the proceedings
initiated against the accused.
14. As regards the suicide note,
which is a document of about 15 pages,
all that we can say is that it is an
anguish expressed by the driver who felt
that his boss (the accused) had wronged
him. The suicide note and the FIR do
not impress us at all. They cannot be
depicted as expressing anything
intentional on the part of the accused
that the deceased might commit suicide.
If the prosecutions are allowed to
continue on such basis, it will be
difficult for every superior officer
even to work." (emphasis supplied)
17. In case of S.S.Cheena, there was a dispute
between one Saurav Mahajan, who was a final year student
of Law Department and Harminder Singh, a fellow student
15 265.11-revn--
of the same class with regard to the theft of a mobile
phone. This came to the notice of M.D.Singh, the then
Head of the Law Department who asked both the students
to submit their versions of the incident in writing.
The deceased and Harminder gave their versions and,
thereafter, M.D.Singh forwarded their versions to the
University authorities for taking necessary action. An
inquiry was conducted on 13th October 2003 by the
Security Officer of the University Shri S.S.Chheena.
During the course of inquiry, on 17th October 2003,
Saurav Mahajan committed suicide by jumping in front of
the train. A suicide note was seized from the the
pocket of the deceased. On the complaint of father of
the deceased, an offence under section 306 of I.P.C. was
registered against Harminder Singh. During the course
of trial, S.S.Cheena was also impleaded as accused.
Being aggrieved by the framing of charge, S.S.Cheena
approached the High Court. The High Court refused to
interfere. Being aggrieved thereby, said S.S.Cheena
approached the Supreme Court. The Apex Court observed
thus:
"27. This Court in Chitresh Kumar Chopra v. State (Government Of Nct Of Delhi)) (2009)
16 SCC 605 had an occasion to deal with
this aspect of abetment. The Court dealt
with the dictionary meaning of the words
"instigation" and "goading". The Court
opined that there should be intention to
provoke, incite or encourage the doing
of an act by the latter. Each person's
suicidability pattern is different from
the other. Each person has his own idea
of self-esteem and self-respect.
Therefore, it is impossible to lay down
any straitjacket formula in dealing with
such cases. Each case has to be decided
16 265.11-revn--
on the basis of its own facts and
circumstances.
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.
29. In the instant case, the deceased
was undoubtedly hypersensitive to
ordinary petulance, discord and
differences which happen in our day-to-
day life. Human sensitivity of each
individual differs from the other.
Different people behave differently in
the same situation.
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." (emphasis supplied)
17 265.11-revn--
18. It can, thus, be clearly seen that for
proceeding further with the trial against the accused
for an offence punishable under section 306, it is
necessary for the prosecution to at least, prima facie;
establish that the accused had an intention to aid or
instigate or abet the deceased to commit suicide. In
the absence of availability of such material, the
accused cannot be compelled to face trial for the
offence punishable under section 306. As held by the
Apex Court, an abatement involves mental process of
instigating the person or intentionally aiding the
person for doing of a thing. Without a positive act on
the part of the accused in aiding or instigating or
abetting the deceased to commit suicide, the said person
cannot be compelled to face a trial. Unless there is
clear mens rea to commit the offence or an active act
or direct act which led the deceased to commit suicide
seeing no option or the act intending to push the
deceased into such a position, the trial against the
accused under section 306 cannot be permitted.
19. From the perusal of the suicide note itself it
would be seen that the deceased had herself stated that
the applicants were taking all the steps for their
(students) benefit and betterment, but she was not in a
position to face the world any more and she was ashamed
of herself. From the statement what can be gathered is
that applicant- Dr.Bhoosreddy was annoyed because
deceased Sneha had not given correct answers and that
she had insulted her and had asked her to write the
18 265.11-revn--
answers five times and a chapter on fracture for ten
times as punishment. However, from the statement of
Dr.Gauri Panse and Dr.Mule, it can be seen that they had
stated that the petitioner Dr. Bhoosreddy had asked Dr.
Gauri Panse to help the deceased and another two
students in their studies, however, deceased never came
to them. It can, thus, clearly be seen that leave apart
there being any act which can be said to have been done
with an intention that the deceased should commit
suicide, on the contrary, the material shows that
intention on the part of Dr.Bhoosreddy was to help the
students including deceased Sneha to overcome their
difficulties and excel in their studies. In so far as
Dr.Dani is concerned, there is absolutely no material
which can be said to be of such a nature that it will
even amount to insulting the deceased. He had punished
all the students who had gone to him along with deceased
to submit their assignment at 1.30 p.m. for not
submitting the same within time and had given equal
punishment to all the students. Insofar as Dr.
Bhoosreddy, absolutely nothing is there to connect him
with offence punishable under Section 306.
20. As could be seen from the suicide note itself,
it can be seen that the deceased was hypersensitive to
ordinary petulance, discord and difference which happen
in our day-to-day life. She appears to have lost her
confidence. From the part of the note addressed to her
mother it appears that she felt that she had only spent
the moneys provided by her father and failed in her
duties towards her parents. She has specifically stated
that nobody is responsible for her death and that she is
19 265.11-revn--
only responsible and that she is taking this step
because she did not want to live any more. In the
suicide note she has stated that she was doing this
though she had tried her level best. She wanted to do
best but destiny always was bad with her. From the
suicide note, it would be clear that she had lost her
confidence and was apprehensive that she would not be in
a position to complete her course successfully. She
appears to be a hyper-sensitive person unable to face
the ground realities of life. As already discussed,
there is no material which can even be said to be prima
facie sufficient to establish that the applicants had
done any act which can be said to be with an intention
to aid or instigate or abet the deceased to commit
suicide. In that view of the matter, to compel the
applicants to face the criminal trial would be nothing
else but a travesty of justice.
21. In the result, rule in Criminal Revision
Application No.265/20011 is made absolute in terms of
prayer clauses (c) and (d) whereas rule in Criminal
Application No.621/2011 is made absolute in terms of
prayer clause (a)
(B.R.GAVAI, J.)