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2011 DIGILAW 199 (JHR)

Manoj Mohan Srivastava v. State of Jharkhand

2011-03-15

D.K.SINHA

body2011
order D.K Sinha, J.-This criminal revision is directed against the order impugned dated 25.11.2010, passed by the learned Additional Sessions Judge-1st, Dhanbad in S.T. No. 555 of 2009, arising out of Dhanbad P.S. Case No. 84 of 2006, corresponding to G.R. No. 382 of 2006, by which the petition filed on behalf of the petitioners: (1) Manoj Mohan Srivastava, and (2) Somnath Shantikari for their discharge for the alleged offence under Sections 306/34 of the Indian Penal Code was rejected 2. The prosecution story in short was that the informant Lav Kumar Singh had presented a written report before Dhanbad Police on 5.2.2006 stating, inter alia, that his maternal uncle in relation namely Nirbhay Kumar Singh was working as the private driver of one Shiv Kumar Khemka, who happened to be the Secretary of Dwarika Das Jalan Memorial Hospital, Dhanbad for the last 6/7 years. On the day of reporting the informant heard rumour that his maternal uncle Nirbhay Kumar Singh died in Jalan Hospital. Upon such rumour when the informant went to the house of the employer Shiv Kumar Khemka. he was apprised that Nirbhay Kumar Singh had already left his job a week prior and also asked the informant to enquire his whereabouts at Jalan Hospital. The Informant went to Jalan Hospital and came across Dr. Anand Mohan Roy @ A.M. Roy, who apprised that Nirbhay Kumar Singh had committed suicide by hanging from the roof and that his dead body was lying on the bed. He went to upstairs in the room and found the dead body of his maternal uncle on the bed. The informant gathered that theft of cash was committed from the cash box of the Hospital room to which allegation was levelled against Nirbhay Kumar Singh about his involvement in such theft. The informant had reason to believe that his maternal uncle Nirbhay Kumar Singh was done to death by Shiv Kumar Khemka and Dr. Anand Mohan Roy @ A.M. Roy and his dead body was hanged from the ceiling by giving the colour of suicide. 3. The case was instituted against Shiv Kumar Khemka, Dr. The informant had reason to believe that his maternal uncle Nirbhay Kumar Singh was done to death by Shiv Kumar Khemka and Dr. Anand Mohan Roy @ A.M. Roy and his dead body was hanged from the ceiling by giving the colour of suicide. 3. The case was instituted against Shiv Kumar Khemka, Dr. Anand Mohan Roy @ A.M. Roy, both of Jalan Hospital and other staff of the said hospital under Sections 302/34 of the Indian Penal Code, but charge-sheet was submitted after investigation under Sections 306/34 of the Indian Penal Code, including against the petitioner No. 1 Manoj Mohan Srivastava as he then was the Security In charge of the Jalan Hospital and the petitioner No. 2 Somnath Shantikari as he was also the security staff of the said hospital. It was alleged that the petitioners had interrogated the deceased Nirbhay Kumar Singh with respect to a theft, which was committed in the cash room of the hospital. The police had filed charge-sheet with the definite case of suicide, being committed by the deceased and since he died in Jalan Hospital and his body was found hanging from the ceiling of the hospital room, the police implicated the petitioners as abettors, Mr. Mazumdar, the learned Sr. Counsel submitted. 4. Mr. Mazumdar further submitted that the petitioner No. 1 Manoj Mohan Srivastava, being the Security In charge, had informed the police earlier about the occurrence of theft of cash from the hospital and his statement was recorded on 5.2.2006 wherein he narrated that on 4.2.2006 he came to learn that theft of cash was committed after breaking open the lock of the cash box and it was revealed during investigation that Nirbhay Kumar Singh (since deceased), who was the driver of Shiv Kumar Khemka, was seen roaming near the store room in suspicious condition. Nirbhay Kumar Singh was interrogated about the theft of money as the suspect and was asked to stay in the hospital. Petitioner No.1 Manoj Mohan Srivastava explained that when he returned back to the hospital on the subsequent day morning, he was informed by his security staff that Nirbhay Kumar Singh had committed suicide in a non-A.C. Room No. 1 by hanging himself from the ceiling. The other witnesses including one Dr. Petitioner No.1 Manoj Mohan Srivastava explained that when he returned back to the hospital on the subsequent day morning, he was informed by his security staff that Nirbhay Kumar Singh had committed suicide in a non-A.C. Room No. 1 by hanging himself from the ceiling. The other witnesses including one Dr. K.K. Sharma came there, who declared Nirbhay Kumar Singh dead and that inquest report revealed that the death appeared to have been caused due to hanging. 5. Learned Sr. Counsel Mr. Mazumdar further submitted that oneRajesh Kumar Thakur, Security Guard of the Jalan Hospital in his statement recorded during investigation of the case narrated that in the morning of 4.5.2006 he noticed from the glass window that one person was hanging with ceiling fan in a non-A.C. room situated at first floor. He went near the window and found that it was the driver of the Secretary and gathered that the door of the cabin was closed from inside. The matter was immediately informed to the staff of the hospital and the dead body of Nirbhay Kumar Singh was lowered down from the ceiling fan. The witness further narrated that Nirbhay Singh was interrogated by Manoj Jee and Somnath, only in connection with theft of cash from the cash box but he never stated that Nirbhay Kumar Singh was ever terrorized or abetted by the petitioners to commit suicide. 6. Learned Sr. Counsel pointed out that the place of occurrence from where the dead body was recovered was inspected and visited by the Investigating Officer who found that the latch of the door of the non-A.C. room, in fact, was broken from inside. The petitioners, as a matter of fact, the learned counsel added, had arrived at the hospital on receiving information from their colleague and witnessed the body of Nirbhay Kumar Singh hanging through the ceiling fan. The latches of the door was then broken and the dead body was brought down. The witnesses were consistent that during commission of theft of the cash from the cash box Nirbhay Singh was found roaming around the store room in suspicious condition and for that he was interrogated. The latches of the door was then broken and the dead body was brought down. The witnesses were consistent that during commission of theft of the cash from the cash box Nirbhay Singh was found roaming around the store room in suspicious condition and for that he was interrogated. Nirbhay Singh was cautioned during interrogation that he might be prosecuted for his criminal act of theft but such interrogate ion or caution made to accused cannot be inferred as abetment under Section 109 of the Indian Penal Code to commit suicide so as to attract offence under Section 306 of the Indian Penal Code. Many other witnesses viz. Rit Kumar, Dinesh Mahato, Kusum Kumari, Meena Kumari and Parwati Devi were also interrogated by the police during course of investigation and all of them were consistent that the deceased was driver of Shiv Kumar Khemka and he was found in tension for the last few days after theft was detected in the Store Room of the hospital and he was seen roaming around there prior to theft of cash. In the post mortem, no external injury was found on the body and the cause of death of Nirbhay Singh was observed to be on account of asphyxia as a result of hanging. A theft of sum of about Rs. 40/45 thousand was committed on 4.2.2006 from the cash box of the hospital, which was kept in the Store Room and the complicity of deceased was suspected in the alleged theft. 7. The Supreme Court of India in Netai Dutta vs. State of West Bengal, reported in 2005 Cr.L.J. 1737 observed, "There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the work place. But, it may also be noticed that the deceased after his transfer in 1999 had never joined the office at 160, B.L. Saha Road, Kolkata and had absented himself for a period of two years and that the suicide took place on 16.2.2001. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide, of Pranab Kumar Nag. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide, of Pranab Kumar Nag. An offence under Section 306 I.P.C. would stand only if there is an abetment for the 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, who instigated any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission. The explanation to Section 107 says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come within the contours of abetment. 8. In the instant case admittedly no suicide note was left out by the deceased Nirbhay Singh so as to put prima facie criminal liability upon the petitioners as the abettors for the commission of suicide by Nirbhay Singh and in my opinion the allegation levelled by the informant was nothing but wild allegations. No material could be brought in the case diary or on the record so as to prima facie implicate the petitioners that they were the perpetrators or abettors consequent to which Nirbhay Singh committed suicide. Similarly situated co-accused Dr. Anand Mohan Roy @ A.M. Roy and Shiv Kumar Khemka were discharged by this court in Cr. Revision No. 950 of 2010 on 1.2.2011. There appears merit in the instant criminal revision, accordingly, it is allowed. The order impugned is set aside and the petitioners: (1) Manoj Mohan Srivastava, and (2) Somnath Shantikari are discharged in Dhanbad P.S. Case No. 84 of 2006, corresponding to G.R. No. 382 of 2006 (S.T. No. 555 of 2009), pending before the Court of the learned Additional Sessions Judge-1st, Dhanbad. .