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2002 DIGILAW 715 (MP)

OMPRAKASH AGRAWAL v. STATE OF M. P.

2002-07-30

UMA NATH SINGH

body2002
UMA NATH SINGH, J. ( 1 ) THIS criminal Revision impugns the order dated 16-5-2002, passed by the learned First Additional Sessions Judge, Hoshangabad in S. T. No. 32/2002, whereby he has framed charges against the applicant under Sections 306, 498-A and 509, IPC. ( 2 ) ADMITTEDLY, deceased Dharmesh and his wife Sandhya were the son and daughter-in-law of the applicant. They had committed suicide by consuming pesticide and they were declared dead in the hospital. As per materials on record, the prosecution submitted a challan for charge under Section 306, IPC on the ground that the applicant used to harass the daughter-in-law Sandhya and consequently, also used to harass his son Dharmesh. The precise allegation against the applicant is that he is a pervert who used to somdomise his domestic servant, Vishal and Vishal in turn took liberty to Sodomise Saurav, grand son of the applicant, which caused a lot of mental agony and trauma to both the deceased, being the parents of Saurav, who, resultantly, committed suicide. As regards the charge under Section 498-A , IPC, the prosecution has collected the materials to the effect that within seven years of her marriage deceased Sandhya was driven to commit suicide by wilful conducts of the applicant , who wanted to establish an illicit relationship with her, his daughter-in-law. At one point of the time, he compelled her to take off all the ornaments given by him in her marriage and as per the statements of witnesses. She used to feel insecured in the presence of the applicant, in the house, who would embarass her by taking baths in her view in a naked posture. Therefore, deceased Sandhya was living under tremendous mental pressure which, prima facie, makes out an offence against the applicant under Section 498-A, IPC. Further for that reason, the prosecution put up a charge also under Section 509, IPC. Mr. Sohbit Aditya arguing for the applicant submits that from the materials available on record, an offence under Section 306, IPC is not made out as none of the ingredients of Section 107, IPC is attracted, in the facts and circumstances of the case. According to Mr. Aditya, there is no material to show that soon before the incident, the applicant by a positive act or suggestion had facilitated the commission of suicide by either of the deceased. Mr. According to Mr. Aditya, there is no material to show that soon before the incident, the applicant by a positive act or suggestion had facilitated the commission of suicide by either of the deceased. Mr. Aditya cites a judgment of the Hon'ble Apex Court reported in AIR 2002 SCW 2035 : (2002 Cri LJ 2796) in the matter of Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh and in terms thereof, further submits that there is no material to show that there was a direct incitemnt or mens rea on the part of the applicant which comes within the definition of abetment of suicide punishable under Section 306, IPC. The learned counsel also cites another Judgment of the Hon'ble Apex Court reported in (1983) 2 SCC 66 : (1983 Cri LJ 691) in the matter of Hasan Ali v. State of Madhya Pradesh, which mandates that in the absence of material to substantiate the charge, the accused cannot be tried thereupon. Thirdly, to set up a ground that in this case the materials on record on being taking together, prima facie, do not disclose an offence and therefore, the accused ought not be tried upon the charges, the learned counsel cites a judgment of the Hon'ble Apex Court reported in AIR 1990 SC 1962 : (1990 Cri LJ 1869) in the matter of Niranjan Singh v. Jitendra Bhimraj Bijja. Mr. Aditya also places reliance on a judgment of this Court reported in 1993 MPLJ 316 in the matter of State of Madhya Pradesh v. Rikhiram and submits that the trial Court is not expected to act as post office. And further as the materials on record herein, as they are, without a rebuttal, would not lead to conviction of the accused-applicant, it would be a waste of public time and money to proceed with the trial. On the point of a charge under Section 498-A, IPC, Mr. Aditya, refers to and relies on a decision of this Court reported in 1994 MPLJ 40 , which reiterates that the element of cruelty is necessary for prosecution thereunder, and the materials to show presence of this element are conspicuous by their absence in the instant case. Mr. Aditya further submits that if there is a dearth of materials for framing charges under Sections 306 and 498-A, IPC, a separate charge under Section 509, IPC is not maintainable for that reason. Mr. Aditya further submits that if there is a dearth of materials for framing charges under Sections 306 and 498-A, IPC, a separate charge under Section 509, IPC is not maintainable for that reason. ( 3 ) ON the other hand, Miss Pandya, learned G. A. for the state submits that all the witnesses have consistently stated in their 161, Cr. P. C. statements that deceased Sandhya and her husband Dharmesh were continuously subjected to mental agony on account of unnatural conducts of the applicant, which ultimately, led to commission of suicide by both them. Miss Pandya further submits that to save the honour of the family, if the daughter-in-law could not complain against, it cannot be presumed that the allegations set out in the challan have been set up as after thoughts. ( 4 ) ON a due consideration of rival submissions so also from a perusal of the records filed with the revision. I find that the submissions of Mr. Aditya, as regards charge under Section 306, IPC merit consideration. the applicant is admittedly the father of deceased Dharmesh, his only son and the father-in-law of deceased Sandhya. It has come on record that on account of some family discord both the deceased had stayed out for a brief period but in the absence of specific materials, the applicant can not be tried upon a charge under Section 306, IPC merely on the basis of hear-say wild allegations. However, if there was an unhealthy atmosphere where their son Saurav could not have been brought up, they would have definitely shifted the family to some other place. On the date of incident, both the deceased were about to leave for Bhopal to attend some marriage and, there is no material on record to show that soon before the incident, the applicant by any intentional act or omission had facilitated the commission of offence. That apart, the entire allegations levelled against the applicant have come out only after the death of the deceased. And if the incident has a background of Sodomy, neither applicant Omprakash Agrawal nor his servant Vishal has been brought to book for a trial upon a charge under Section 377, IPC. That apart, the entire allegations levelled against the applicant have come out only after the death of the deceased. And if the incident has a background of Sodomy, neither applicant Omprakash Agrawal nor his servant Vishal has been brought to book for a trial upon a charge under Section 377, IPC. Besides, there is no iota of materials to show that immediately before the incident, the deceased had given an inkling about their feelings of dismay and harassment on account of any conduct of the applicant which could have been a ground to connect the applicant with the offence under Section 306, IPC. Hence, I do not find prima facie materials against the applicant for trial under Section 306, IPC, therefore, the charge on that count, is hereby quashed. Now coming to a charge under Section 498-A, IPC, as the witnesses have disclosed that deceased Sandhya was living under constant mental agony on account of wilful conducts of the applicant, her father-in-law as at one point of time she was made to wear off all her ornaments, and further as her husband also accompanied her in committing suicide leaving alone their only son Sourabh, I find prima facie materials on record to try the applicant upon a charge under Section 498-A, IPC. Therefore framing a charge thereunder being sustainable in law does not call for any interference. ( 5 ) A charge under Section 509, IPC also does not call for interference in revision as it is founded on prima facie materials to short unnatural conducts of the applicant, who allegedly by word, gesture and act intended to insult the modesty of the deceased, his daughter-in-law. ( 6 ) UNDER the circumstances, the criminal revision succeeds in part of the extent that only the charge under Section 306, IPC is hereby quashed and the applicant shall be tried upon other charge under Sections 498-A and 509, IPC. ( 7 ) THUS the criminal revision is partly allowed. Revision partly allowed. .