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2012 DIGILAW 513 (RAJ)

Vijay Kumar Rastogi v. State of Rajasthan

2012-02-23

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—Pankaj Sharma for the accused-respondents. 2. Both the revision petitions, one filed by the complainant, Vijay Kumar, and the other filed by the State of Rajasthan, challenge the order dated 06.01.2011 passed by the Additional Sessions Judge, Gulabpura, District Bhilwara whereby the learned Judge has discharged Smt. Nisha and Dilip Kumar Morwani of offence under Section 306 IPC. Since both these petitions arise out of the same impugned order, they are being decided by this common judgment. 3. The brief facts of the case are that on 19.10.2010, Vijay Kumar Rastogi, the complainant, lodged a report at Police Station, Gulabpura wherein he claimed that due to the repeated threats given by his wife, Smt. Nisha, and by her father, Dilip Kumar Morwani, that they would involve his family in matrimonial disputes, his father, Ashok Kumar, committed suicide. After a thorough investigation, the police submitted a charge-sheet against Smt. Nisha and Dilip Kumar Morwani, respondent Nos. 2 & 3, respectively for offence under Section 306 IPC. However, after hearing both the sides, vide order dated 06.01.2011, the learned Judge discharged Smt. Nisha and Dilip Kumar Morwani, for the aforementioned offence. Hence, these petitions before this court. 4. Mr. Sudhir Saruparia, the learned counsel for the complainant, has vehemently contended that a bare perusal of the statements of Smt. Jamna Devi, the wife of the deceased and of Mr. Vijay Kumar, clearly reveal that Smt. Nisha had disturbed the atmosphere of the family by repeatedly threating them that she would commit suicide, or would falsely implicate the family members in criminal cases. Due to the said threats, Ashok Kumar, the deceased, had no other option but to commit suicide by jumping before a running train. Smt. Nisha was also helped by her father, Dilip Kumar who also threatened the family members of the complainant. Thus, clearly offence under Section 306 IPC is made out. Hence, the learned Judge has erred in discharging Smt. Nisha and Dilip Kumar of offence under Section 306 IPC. 5. Mr. O.P. Singharia, the learned Public Prosecutor has echoed the arguments raised by the learned counsel for the complainant. 6. On the other hand, Mr. Pankaj Sharma, the learned counsel for the accused-respondents, has contended that Section 306 IPC will have to be read with Section 107 IPC which defines “abetment”. 5. Mr. O.P. Singharia, the learned Public Prosecutor has echoed the arguments raised by the learned counsel for the complainant. 6. On the other hand, Mr. Pankaj Sharma, the learned counsel for the accused-respondents, has contended that Section 306 IPC will have to be read with Section 107 IPC which defines “abetment”. Abetment is said to be either by instigation, or by entering into a conspiracy or by intentional aiding the commission of an offence. However, in the present case, none of these three elements exist. Since the charge for abetment is conspicuously missing, therefore, the offence under Section 306 IPC is not made out. 7. Heard the learned counsel for the parties, perused the impugned judgment as well as the record produced before this court. 8. Section 107 IPC defines “abetment” is 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 aids, by any act or illegal omission, the doing of that thing. 9. The word “instigate” literally means to provoke, to incite, to urge, to bring about by persuasion to do anything. 10. In the case of Randhir Singh @ Anr. vs. State of Punjab ( (2004) 13 SCC 29 ), the Apex Court opined that “Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.” (Emphasis added) 11. The word 'urge' means to advice or try hard to persuade somebody to do something, to make a person to move more quickly or in a particular direction, specially by pushing or forcing such person. The word 'urge' means to advice or try hard to persuade somebody to do something, to make a person to move more quickly or in a particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to “goad” or “urge forward” the latter with intention to provoke, incite or encourage the doing of an act by the latter. In order to prove abetment, it must be shown that the accused kept on urging or annoying the deceased by words, taunts or wilful omission or conduct which may even be wilful silence, until the deceased reacted, or pushing the deceased by his words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction. Secondly, the accused had the intention to provoke or urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly the presence of mens rea is the necessary concomitant of instigation. 12. In the case of S.S. Chheena vs. Vijay Kumar Mahajan & Anr. ( (2010) 12 SCC 190 ), the Apex Court observed that “abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is 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 that act must have been intended to push the deceased into such a position that he committed suicide.” (Emphasis added) 13. In the case of Amalendu Pal @ Jhantu vs. State of West Bengal ( (2010) 1 SCC 707 ), the Apex Court has opined as under :- “12. In the case of Amalendu Pal @ Jhantu vs. State of West Bengal ( (2010) 1 SCC 707 ), the Apex Court has opined as under :- “12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which let or compelled the person to commit suicide, convition in terms of Section 306 IPC is not sustainable. 13. In order to bring a case within the purview of Sectiion 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (Emphasis added) 14. The moot point before this Court is whether the conduct of Smt. Nisha and her father would tantamount to “instigating” or “intentionally aiding” the commission of suicide by Ashok Kumar or not? A bare perusal of the statement of Smt. Jamna, the wife of the deceased, clearly reveals that ever since her son Vijay Kumar got married with Nisha, Nisha had told them that she has not been married to a person of her liking. Moreover, she has been threatening them that she would commit suicide and would implicate the family members in criminal cases. Therefore, according to the Smt. Jamna, her husband, who was a simple person, was frightened and had committed suicide by jumping before a train. Moreover, she has been threatening them that she would commit suicide and would implicate the family members in criminal cases. Therefore, according to the Smt. Jamna, her husband, who was a simple person, was frightened and had committed suicide by jumping before a train. Similar statement was also given by Vijay Kumar both under Section 161 Cr.P.c. and 174 Cr.P.C. 15. Mere threats of involving the family in a false and frivolous cases cannot be held to tantamount to instigation. Instigation has been interpreted to mean to provoke, to incite, to urge a person to do a particular act. However by these threats it cannot be held that the accused-respondents instigated Ashok Kumar to commit suicide. 16. In the suicide note left by the deceased, he has merely stated that “in case Nisha were to come back home, she would ruin the family”. Even the said suicide note cannot be held to be indicative of the fact that Nisha and her father, Dilip Kumar, have instigated or intentionally aided Ashok Kumar in committing suicide. 17. Since the essential ingredients of Section 107 IPC are conspicuously missing in this case, obviously offence under Section 306 IPC is not made out. Therefore, the learned Judge was certainly justified in discharging the accused-respondents, Smt. Nisha and Dilip Kumar, for offence under Section 306 IPC. Hence, this Court does not find any illegality or perversity in the impugned order. 18. Both these revision petitions are devoid of any merit. The same are, hereby, dismissed.