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2006 DIGILAW 46 (MP)

Madiya @ Mahadev v. State of M. P.

2006-01-05

S.C.VYAS

body2006
ORDER 1. This revision petition under sections 397 and 40 I of the Code of Criminal Procedure is directed against the order dated 17.10.2005 in Sessions Trial No. 130/2005 passed by Additional Sessions Judge, Manawar, District Dhar, whereby trial Court had directed framing of charges against the petitioner under section 306 of the Indian Penal Code. 2. As per the final report submitted by Police, Manawar'. District Dhar before the learned lower Court, the case of the prosecution was that on 21.2.2005 when Basantibai d/o Bhangda Bhil aged about 16 years. of village Piplaj was attending natural call in the forest, then petitioner came there and caught hold of the girl with intend to outrage her modesty and tried to snatch her towards nala. The said Basantibai was opposing the act of the petitioner. At that time Surbai w/o Mohan Bhil, aged about 20 years, and younger sister of Basantibai. Ramabai d/o Bhangda Bhil, aged 11-12 years, who were also attending natural call had witnessed the incident. Both of them pelted stones on petitioner and thereafter petitioner left Basantbai and ran away from the place of incident. The incident was narrated by the said eye-witnesses to the parents of Basantibai. Basantibai also came to know that the witnesses have informed her parents regarding the incident. She felt very much ashamed because of the incident and feeling herself defamed. ultimately she committed suicide by hanging with the help of a rope. The matter was reported to the police and merg No. 17/05 was registered. On enquiry the offences punishable under section 354, 306 of Indian Penal Code were registered against the petitioner and he was arrested. After completing the investigation charge-sheet was filed before the JMFC, Manawar' who committed the case for trial to the Court' of Sessions. 3. At the time of framing of charge a submission was made on behalf of the petitioner accused that considering the entire circumstances and the evidence available in the case offence under section 306 of Indian Penal Code is not made out against the petitioner even prima facie and. therefore, a prayer for discharge was made. 3. At the time of framing of charge a submission was made on behalf of the petitioner accused that considering the entire circumstances and the evidence available in the case offence under section 306 of Indian Penal Code is not made out against the petitioner even prima facie and. therefore, a prayer for discharge was made. Learned trial Court considered the arguments advanced by learned counsel for the petitioner and ultimately held that prima facie offence punishable under section 306 of Indian Penal Code is also made out along with the offence punishable under section 354 of Indian Penal Code, therefore, charges were framed against the accused petitioner. Feeling aggrieved by this order present revision petition has been filed. 4. Learned counsel for the petitioner Shri Mukesh Sinjoniya submitted that if the entire story of the prosecution is believed even then the necessary ingredients of the offence punishable under section 306 of Indian Penal Code are totally missing in this case. He has submitted that for establishing an offence punishable under section 306 of Indian Penal Code, act of abetment as defined under section 107 of the Indian Penal Code is required to be established. He has further submitted that two days prior to the alleged suicide by the deceased Basantibai the alleged act of misbehaviour by catching hand of deceased Basantibai and trying to outrage her modesty was committed by the accused. On these facts at the most prima facie offence under section 354 can be said to have been committed by the accused petitioner but by no stretch of imagination it can be said that the act of accused petitioner was to instigate the deceased Basanti to commit suicide, therefore, Shri Sinjoniya Advocate prayed that the order passed by learned Sessions Judge is not sustainable in the eye of law and is required , to be quashed so far at it relates to the offence punishable under section 306 of the Indian Penal Code is concerned. 5. Learned Panel lawyer Shri Joshi appearing for the State submitted that prima facie there is sufficient material available on record to hold accused petitioner has committed an offence punishable under section 306, Indian Penal Code and, therefore, there is no scope of interference in the order passed by the learned Sessions Judge. 6. 5. Learned Panel lawyer Shri Joshi appearing for the State submitted that prima facie there is sufficient material available on record to hold accused petitioner has committed an offence punishable under section 306, Indian Penal Code and, therefore, there is no scope of interference in the order passed by the learned Sessions Judge. 6. To resolve the controversy it appears necessary first of all to have a look on the provisions of section 306 and section 107 of the Indian Penal Code. Section 306 of Indian Penal Code reads as under: "Section 306. -- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to tine." Abetment has been defined in section 107 and 109 of Indian Penal Code which reads as under: "Section 107. -- A person abets the doing of a thing, who - First - Instigates any person to do that thing; or Secondly - Engages with one or more other 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, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commision thereof is said to aid the doing of that act." Section 109 of the Indian Penal Code provides for punishment of abetment which reads as under: "Section 109 -- Whoever abets any offence shall. if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence." 7. if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence." 7. As section 306 of Indian Penal Code makes abetment of commission of suicide punishable, therefore, making liable for an offence punishable under section 306, Indian Penal Code it is a duty of the prosecution to establish that such person has abated the commission of suicide and for the purpose of determining the act of the accused it is necessary to see that his act must fall in any of the 3 categories as enumerated under section 107 of the Indian Penal Code and, therefore, it is necessary to prove that the said accused has instigated the person to commit suicide or must have engaged with one or more other person in any conspiracy for seeing that the deceased commits suicide or he must intentionally aids by any act or illegal omission, of the commission of suicide by the deceased. 8. When we considered the facts of the present case then it becomes manifestly clear that there appears no direct or indirect connection between the act of the accused petitioner on 21.2.2005 and the act of the deceased Basantibai on 23.2.2005 when she hanged herself by neck and committed suicide. On 21.2.2005 when accused petitioner was trying to outrage the modesty of the girl then there was no occasion for even thinking that because to this act the girl would commit suicide. It appears that the girl was in great stress and depression and was feeling ashamed as the story of the incident was narrated by her younger sister and other girl to her parents. If the deceased Basantibai was thinking commission of suicide because of the act of the accused then she could have done so on the date of incident i.e., 2 1.2.2005. The period of two days which elapsed between two incidents shows that, it was not the act of the accused petitioner which instigated her to commit suicide, but it was defamation and feeling of shame which ultimately became the cause of commission of suicide. 9. Our High Court and Hon 'ble Supreme Court has considered the scope of sections 107 and 306 of Indian Penal Code in many cases. 9. Our High Court and Hon 'ble Supreme Court has considered the scope of sections 107 and 306 of Indian Penal Code in many cases. In Sanju v. State of M.P. [ 2002(2) JLJ 275 =(2002)5 SCC page 3711 the Hon 'ble apex Court in paragraph 9 to 12 observed as under: "Para 9. In Swamy Prahaladdas v. State of M.P. and another [1995 Supp (3) SCC 438], the appellant was charged for an offence under section 306, Indian Penal Code on the ground that the appellant during the quarrel is said to have remarked the deceased "to go and die". This Court was of the view that mere words uttered the accused to the deceased "to go and die" were not even prima facie enough to instigate the deceased to commit suicide. . 10. In Mahendra Singh v. State. of M.P. [1995 Supp (3) SCC 73 I], the appellant was charged for an offence under section 306, Indian Penal Code basically based upon the dying declaration of the deceased, which reads as under: My mother-in-law' and husband and sister-in-law (husband' s elder brother's wife) harassed me. They beat me, abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Becuase of those reasons and being harassed I want to die by burning. 11. This Court, considering the definition of 'abetment' under section 107, Indian Penal Code, found that the charge and conviction of the appellant for an. offence under section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased. 12. In Ramesh Kumar v. State of Chhattisgarh [ (2001)9 SCC 618 ], this Court while considering the charge framed and the conviction for an offence under section 306, Indian Penal Code on the basis of dying declaration recorded by an Executive Magistrate, which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged for abeting the offence of suicide should be found guilty." 10. Learned counsel for the petitioner has placed reliance on the case of Mangleshwar Singh (Dr.) v. State of M.P. [2003 CrLR (MP) 521], Om prakash Agrawal v. State of MP [ 2003(1) MPHT 127 ], Anant Kumar Denial v. State of Chhattisgarh and others [2003(5) MPHT 6 (CG)], Nanka and others v. State of M.P. [1998 CrLR (M.P.) 336], Utkal and another v. State of M.P. [1997 CrLR (MP 354], Raja Lal @ Kamlesh s/o Philips v. The State of M.P. [1998 CrLR (MP) 354], Manish Tiwari v. State of M.P. [2001 CrLR (MP) 167], and on the basis of these reported cases he submitted that no offence under section 306 of the Indian Penal Code is made out against the accused petitioner. 11. The facts of the case Utkal and another v. State of M.P. (supra) are more similar to the facts of the present case, in that case also it was found that the alleged misbehavior may be a cause for committing suicide but would not amount to abetment to commit same as defined under section 107 of the Indian Penal Code and in the facts and circumstances of that case charge under section 306 of the Indian Penal Code was not found justified and, therefore, that charge was quashed. 12. In the present case also when we apply the definition of abetment as given in section 107 of Indian Penal Code then it becomes manifestly clear that the .act of accused petitioner does not come in any of the categories enumerated in that section unless the act of the accused petitioner comes under any category mentioned in section 107 of the Indian Penal Code. he cannot be held guilty for commission of . he cannot be held guilty for commission of . the offence punishable under section 306 of the Indian Penal Code. 13. Therefore. the learned trial Court. committed a mistake of law in framing charges against the accused for offence punishable under section 306 of the Indian Penal Code, this revision petition succeeds and is allowed. The order of learned trial' Court for framing charge of the offence punishable under section 306 of the Indian Penal Code is set aside and the said charge is quashed, however, trial against the accused petitioner may proceed for remaining charges as per provision of law. Order accordingly.