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2010 DIGILAW 1028 (MP)

Malkhan Singh v. State of M. P.

2010-10-11

INDRANI DATTA

body2010
ORDER 1. With the consent of the parties. the matter is heard finally at motion stage: 2. This revision has been preferred by the applicants under section 397/401 of Code of Criminal Procedure. 1973 against the order dated 6.5.2001 passed by VIth Additional Sessions Judge (Fast Track) Lahar. District Bhind in Sessions Trial No. 280 of 2009 whereby charge under section 30r, IPC has been framed against the applicants. 3. The facts in nut-shell giving rise to this revision petition are that applicants and co-accused are facing Sessions Trial No. 280 of 2009 before VIth ASJ (Fast Track) Lahar whereby the charge has been framed against applicants for the offence alleged to have been committed under section 306 IPC giving rise to this revision. 4. It is contended on behalf of the applicants that applicant No.1 is husband and applicant no. 2 is Jethani of deceased Lata who sustained burn injuries on 9.2.2009 and expired on 19.2.2009. It is submitted that dying declaration of deceased was recorded twice first on 9.2.2009 and second on 12.2.2009 and in both the dying declarations she has deposed that she was cooking food and at that time her saree caught tire and she sustained burn injuries. It is further submitted that statement of her mother Urmila was recorded by Executive Magistrate on 19.2.2009 in which she has slated that when she met deceased in hospital deceased has not told her anything and she was frightened. She has further stated that there was no specific dispute between deceased and her in laws except small household matter and she suspects hand of applicants in the incident. It is further submitted that this statement of mother of deceased is only suspicion and thereafter her statement and statement of the witnesses under section 161 CrPC is recorded after five months on 4.7.2009 wherein, it is alleged that deceased told them that applicants used to beat her and harass her concerning household matters. It is urged that the applicants are falsely implicated in the case. Prima facie no case under section 306 IPC is made out as necessary ingredients of abatements are lacking. It is also specific from her dying declaration that she caught five accidentally hence, order of trial Court framing charge under section 306 IPC deserves to be set-aside. 5. It is urged that the applicants are falsely implicated in the case. Prima facie no case under section 306 IPC is made out as necessary ingredients of abatements are lacking. It is also specific from her dying declaration that she caught five accidentally hence, order of trial Court framing charge under section 306 IPC deserves to be set-aside. 5. Learned counsel for the applicants placed reliance on the decision Surendra Jain v. State of M.P. 2007 (1) MPWN 85 . in that case it was observed that act of accused was not fully falling in any of the three categories enumerated under section 107 CrPC hence. charge cannot be framed. further reliance is placed on the citation Radha (Smt.) v. State of M.P, 2009 (1) J LJ 236 = ILR (2008) MP 3333 in which. it is held that abatement of suicide under section 306 IPC involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aiding doing of a thing is thus required before a person can be said to be abetting suicide. Cruel or insulting behaviour cannot be taken an act of abetting suicide. Relying on these citations, it is submitted that the prima facie no case is made out under sect ion 306 IPC against applicants as there is no evidence that the applicants instigated deceased to commit suicide. 6. Combating claim of the applicants learned Panel Lawyer urged that in the statements of witness Urmila mother of deceased recorded under section 161 CrPC on 4.7.2009 it has been specifically stated that applicants used to harass and torture her due to which she set herself on fire and committed suicide. Further in the statement of Ramavtar recorded under section 161 CrPC on 4.7.2009 it is specifically stated that the deceased intimated him that the applicants set her on fire and. therefore the charge under section 306 IPC has rightly been framed against the applicants. It is further submitted that at least case will come in purview of section 498 A IPC and order of trail Court requires no interference and therefore prayed for rejection of this revision. 7. Heard rival contentions of Parties and perused the documents available on record. 8. For framing charge under section 306 IPC. It is further submitted that at least case will come in purview of section 498 A IPC and order of trail Court requires no interference and therefore prayed for rejection of this revision. 7. Heard rival contentions of Parties and perused the documents available on record. 8. For framing charge under section 306 IPC. it is necessary that there should be material to indicate that accused has abetted the deceased to commit suicide. Section 306 IPC 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 he liable to tine." Abatement has been defined in section 107 and 109 IPC which reads as under - "Section 107 -- A person abets the doing of thing. who-- First --Instigates any person to do that thing: or Secondly -- Engages with one marc 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 act or illegal omission the doing of that thing. Whoever either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act and thereby facilitates the commission 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 abetment and there is no provision for the punishment of such abetment then the offenders is to be punished with the punishment provided for the offence." "Section 306 IPC makes abetment of the commission of suicide punishable therefore, for making liable for an offence punishable under section 306 IPC it is a duty of the prosecution to establish that such person has abetted the commission of suicide and for the purpose of determining the act of accused, it is necessary to see that his act must fall in any of the three categories as enumerated under section 107 IPC it is necessary to prove that the said accused Instigated the person to commit suicide or engaged himself with one or more other persons in any conspiracy for seeing that the deceased commits suicide". Thus, on the basis of the material collected during investigation it can safely be said that there is no prima facie case to indicate that applicants incited prompted or pressurized the deceased with the intention that she should commit suicide. The ingredients of section 107 IPC are totally lacking, However. whether, applicants subjected her to cruelty or not is to be decided after evidence. 9. Considering the above legal position and the material collected during investigation in this case, this revision is allowed and the order dated 6.5.2010 passed by Vith ASJ (Fast Track) Lahar Distt. Bhind in S.T. No. 280 of 2009 framing charge under section 306 IPC against the applicants is hereby set-aside. The charge can be altered at any time. Learned trial Court should proceed With the trial considering the above obscrvati0ns keeping in view the provisions of section 228 (1) (a) CrPC. Copy to concerned Court as per rules.