Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 350 (CHH)

Nihaluddin Alias Munna v. State of C. G.

2011-11-03

SUNIL KUMAR SINHA

body2011
ORDER Hon'ble Shri Sunil Kumar Sinha, J. 1. Deceased- Tauhiduddin was younger brother of the applicant. The deceased was residing separately along with his wife, complainant- Shayra Begum. The deceased was a tempo-driver. He was missing since 9.10.2003. On 16.10.2003 he was found dead in Shivnath river. Merg intimation was recorded and the dead body was sent for post-mortem. On post-mortem examination, it revealed that the death was on account of asphyxia due to inhalation of water caused by drowning. During the course of investigation of missing report, statement of wife of deceased, namely Shayra Begum, was recorded on 14.10.2003. In the said statement, she simply mentioned that the deceased was missing since 11.00 p.m. of 9.10.2005. She also stated that a dispute had taken place between the deceased and his elder brother (applicant herein), but it was not very serious, such disputes relating to their property had taken place many times, but after the disputes both the brothers used to reside in usual manner. The dead body of the deceased was taken out from the river as an unidentified body. When it was identified to be that of the deceased, another statement of Shayra Begum was recorded on 20.10.2003. In this statement, she gave details about various instances of family quarrels between the applicant and the deceased and stated that the dispute was mainly on account of their ancestral property in their parental village and also on account of partition of father's estate. Third statement of Shayra Begum was also recorded on 25.10.2003. In this statement, she quoted that after the death of father of the deceased on 26.7.2002, the bank balance of his father was also retained by the applicant and the applicant had also not given the batai of land of village Mahouda (U.P.). She made allegations that the applicant was driver in BSP. He used to bring illegal diesel and he always used to pressurize the deceased for purchasing illegal diesel by paying the applicant 2 rupees lesser than the market rate. In last paragraph of this 3rd statement, she stated that 2 days prior to 9.10.2003, the deceased was looking disturbed. She made allegations that the applicant was driver in BSP. He used to bring illegal diesel and he always used to pressurize the deceased for purchasing illegal diesel by paying the applicant 2 rupees lesser than the market rate. In last paragraph of this 3rd statement, she stated that 2 days prior to 9.10.2003, the deceased was looking disturbed. When she asked, he told her that the applicant had retained the amount of the land and when he was asking about the amount from the applicant, the applicant assaulted him and threatened him saying that he will keep the entire property of the village. On this when the deceased said that where he will live, the applicant added that "go and die, he will not give a single inch of land." It is on this evidence a charge-sheet was filed u/s 306 IPC against the applicant and the matter was committed to the Session's Court Durg and was registered as Session Trial No. 110/2004. 2. The learned Session Judge took up the mater for framing of charges. It was argued that in the above facts and circumstances of the case, an offence u/s 306 IPC would not be made out, therefore, the applicant should be discharged. The Session Judge did not accept the above arguments and framed charges against the applicant u/s 306 IPC vide order dated 10.9.2004, which has been impugned by the applicant in this criminal revision. 3. Mr. Rakesh Pandey, learned counsel appearing on behalf of the applicant, would submit that there is no evidence of instigation; there is no evidence to show that the applicant committed any such act which may amount to abetment of suicide; even if the entire evidence collected by the prosecution is accepted on its face value, an offence u/s 306 IPC would not be made out and the Session Judge erred in law in not discharging the applicant/accused at the stage of framing of charges. 4. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the view taken by the Session Court. 5. I have heard learned counsel for the parties at length and have also perused the records of the criminal revision. 6. Section 306 IPC deals with "abetment of suicide". It reads as under:-- 306. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the view taken by the Session Court. 5. I have heard learned counsel for the parties at length and have also perused the records of the criminal revision. 6. Section 306 IPC deals with "abetment of suicide". It reads as under:-- 306. Abetment of suicide.--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 fine. 7. "Abetment of a thing" has been defined under Section 107 of the Code, which reads as under:-- 107. Abetment of a thing.--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 aides, by any act or illegal omission, the doing of that thing. Explanation 2 which has been inserted along with Section 107 reads as under: Explanation 2.--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. 8. In Gangula Mohan Reddy Vs. State of A.P. (2010) 1 SCC 750, the Supreme Court while interpreting Section 306 IPC held that "Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens rea to commit the offence." 9. In Ramesh Kumar Vs. State of Chhattisgarh (2001) 9 SCC 618, the Supreme Court held that "Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. State of Chhattisgarh (2001) 9 SCC 618, the Supreme Court held that "Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 10. In Sanju alias Sanjay Singh Sengar Vs. State of M.P. (2002) 5 SCC 371, the deceased committed suicide on 27-7-1998, whereas, the alleged quarrel had taken place on 25-7-1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it was not the direct result of the quarrel taken place on 25-7-1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. 11. Taking note of various earlier judgments, in M. Mohan Vs. State Represented by the Deputy Superintendent of Police (2011) 3 SCC 626, the Supreme Court held that "Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence u/s 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide." 12. There should be clear mens rea to commit offence u/s 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide." 12. On a close reading of the above provisions of IPC and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case u/s 306 IPC, there should be clear mens rea to commit offence under this Section and there should be direct or active act by the accused which led the deceased to commit suicide. That is to say that there must be some evidence, of "instigation", "co-operation" or "initial assistance" by the accused to commit would be suicide by the victim/deceased. 13. In the instant case, in the first statement of Shayra Begum, wife of the deceased, there is no whisper about any positive act of the applicant which may be called as 'instigation'. Shayra Begum simply stated that both the brother most oftenly used to quarrel. In subsequent 2 statements which were recorded on 20.10.2003 and 25.10.2003 she has elaborated about the instances of quarrels and disputes relating to family property between the 2 brothers. In last statement, she very clearly stated that 2 days prior to 9.10.2003, the deceased was looking upset. When she asked about it, the deceased told her about the quarrel which took place between the deceased and the applicant She very specifically mentioned that the deceased told her that the applicant said that he wilt not give any portion of property to him and he should go and die. This makes clear that the alleged quarrel between the applicant and the deceased took place 2 days prior to the alleged incident, that may be on 7.10.2003, and the deceased committed suicide on 9.10.2003 or 10.10.2003 because he was alive till 11.00 p.m. of 9.10.2003. Almost in similar situation in Sanju3 (supra), where the quarrel has taken place 2 days prior to commission of suicide, the Supreme Court held that the suicide was no direct result of quarrel. In the instant case also, on the above evidence, it cannot be said that the suicide was the direct result of the quarrel between the 2 brothers. Almost in similar situation in Sanju3 (supra), where the quarrel has taken place 2 days prior to commission of suicide, the Supreme Court held that the suicide was no direct result of quarrel. In the instant case also, on the above evidence, it cannot be said that the suicide was the direct result of the quarrel between the 2 brothers. It does not appear to be a case in which there was an instigation by the applicant to the deceased to commit suicide. There is further no evidence of co-operation or event of initial assistance by the applicant to the deceased to commit suicide and in this manner, there is hardly any evidence of abetment to commit suicide in this matter. In M. Mohan4 (supra), the Supreme Court held that "The intention of the legislature and the ratio of the cases decided by the Supreme Court are 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 this act must have been intended to push the deceased into such a position that he/she committed suicide." In the present case, we don't find evidence of above nature. There cannot be proximate link between the quarrel which took place 2 days prior to 9.10.2003 and the suicide which was allegedly committed on 9.10.2003 or 10.10.2003. I am of the view that on such evidence, it was not possible to frame the charges u/s 306 IPC. 14. In Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692, the Supreme Court observed vide Para- 7 that : 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the incontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, ho useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. It was a proposition relating to criminal prosecution. 15. In Madan Mohan Singh Vs. State of Gujarat (2010) 8 SCC 628, the Supreme Court quashed the proceedings u/s 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings. For the foregoing reasons, the revision is allowed. The impugned order of framing of charges is set-aside. The charges framed u/s 306 IPC are also quashed and the applicant stands discharged from the above criminal case.