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2013 DIGILAW 374 (MP)

Shrikrishna v. State of M. P.

2013-03-19

Brij Kishore Dube

body2013
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 17.5.2010 passed by the learned III Additional Sessions Judge, Bhind in Sessions Trial No.289 of 2009 (State of Madhya Pradesh v. Shrikrishna and others), convicting the appellants under section 306 of IPC and thereby sentencing each of them to suffer seven years rigorous imprisonment with fine of Rs.200/-, in default of payment of fine additional fifteen days rigorous imprisonment, the appellants have preferred this appeal under section 374 of the Code of Criminal Procedure, 1973. 2. The prosecution case, in brief, may be narrated as under : (i) That, the complainant, Maharaj Singh (PW4) on 22.4.2008 at 9:00 a.m., lodged a report at the Police Station, Phoof to the effect that yesterday his brother, Vijayram alias Putai (hereinafter referred to as the deceased) left his village at about 9:00 - 10:00 a.m., to the house of his friend, Dashrath alias Pappu at Jagepura, Pawayya Colony and stayed there in the night. Today, in the morning he (complainant) received information that his brother, Putai committed suicide in the bungalow (a part of house) of Chunnilal Jatav. On this, he (complainant) went to the spot and found a rope around the neck of his brother, Putai and had died due to hanging. On this, Merg No.13/08 (Ex.P-6) under section 174 CrPC, was registered by Head Constable, Ram Kumar Pathak (PW3). The criminal law was triggered and set in motion. (ii) That, the Investigating Officer, Brijendra Singh (PW1), immediately reached on the spot and prepared the spot map (Ex.P-1), safina form, Ex.P-2 and inquest on the dead body of the deceased (Ex.P-3) and sent it for post-mortem (Ex.P-4) and seized necessary articles from the place of occurrence. Dr. J.S. Yadav (PW7) conducted post-mortem at District Hospital, Bhind and opined that death occurred becuase of asphyxia due to hanging and (iii) That, the Investigating Officer recorded the statements of the witnesses who were acquainted with the facts of the offence. On 17.4.2009 at 17:00 hours, an FIR at Crime No.63/09 under section 306/34 of IPC (Ex.P-5) was registered against the appellants by the Station House Officer, Ummed Singh Tomar (PW2). The matter was further investigated. On 17.4.2009 at 17:00 hours, an FIR at Crime No.63/09 under section 306/34 of IPC (Ex.P-5) was registered against the appellants by the Station House Officer, Ummed Singh Tomar (PW2). The matter was further investigated. On completion of the investigation, a charge-sheet was filed against three accused persons (appellants) before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the trial Court for the trial. 3. The learned trial Judge on the basis of the material placed on record framed charge punishable under section 306 of IPC against the accused-appellants. The appellants denied the charge and claimed to be tried. The defence of the appellants is of false implication and the same defence they set forth in their statements recorded under section 313 of the Code of Criminal Procedure, 1973. 4. To bring home the charge, the prosecution has examined as many as 8 witnesses and placed Exhibits P-1 to P-7, the documents on record. The accused-appellants have examined Chaturilal (DW1) and Ashok (DW2) in their defence. 5. The learned trial Judge on the basis of evidence placed on record came to hold that charge has been proved against the accused persons as a result of which convicted them and passed the sentence as mentioned hereinabove. 6. In this manner, this appeal has been preferred by the appellants assailing their judgment of conviction and order of sentence passed by the learned trial Court. 7. Legality and propriety of the impugned judgment of conviction has been challenged by the appellants on the ground of mis-appreciation of the evidence on record. Learned senior counsel for the appellants, Shri V.K. Saxena has submitted that the appellants have been falsely roped in the case. There was no cogent evidence to establish the ingredients of the offence for which they have been charged. There was no direct or indirect evidence of abetting the deceased to commit suicide by the appellants and, therefore, the prosecution failed to proved its case beyond doubt. The learned trial Court erred in convicting the appellants, hence, this appeal may be allowed and the appellants be acquitted from the charge. There was no direct or indirect evidence of abetting the deceased to commit suicide by the appellants and, therefore, the prosecution failed to proved its case beyond doubt. The learned trial Court erred in convicting the appellants, hence, this appeal may be allowed and the appellants be acquitted from the charge. Learned counsel has placed heavy reliance on the following decisions : (i) Gangula Mohan Reddy v. State of A.P. [(2010)1 /SCC (Cr.) 917]; (ii) Ajay Patodiya v. State of M.P. [ 2003(II) MPWN 153 =2004 Cr.LJ 197]; (iii) Mahendra Singh v. State of M.P. [1995 SCC (Cr.) 1157]; (iv) Sohan Raj Sharma v. State of Haryana [2008(1) CAR 492]; (v) Ramesh Kumar v. State of Chhatisgarh [2001(2) BLJ 113=2002 SCC (Cr.) 1088]; and (vi) Abdul Hanif v. State [ 2002(II) MPWN 12 ]. 8. On the contrary, Shri Prabal Solanki, learned Public Prosecutor has supported the impugned judgment and findings arrived at by the learned trial Court and submitted that the conviction in question is well merited. 9. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 10. PW4 Maharaj Singh who is elder brother of the deceased,Putai has deposed that the deceased was living with the accused persons at Delhi for the last 6 years and had deposited Rs.50,000/- out of the money earned by him while working as labourer with them. 19-20 months prior to the date of the incident, he went to Delhi. His brother, Putai and he himself also demanded the money from the accused persons then, the accused told that the money is not with them and they will return it after some time. Again, 6-7 months earlier to the incident, he went to Delhi where he and his brother,Putai demanded the money from the accused persons in the presence of Ram Sanhi, Ram Singh and Sultan Singh then, they told that there is a marriage in their family in the month of Vaishakh, they will return the money thereafter. On 21.4.2008, his brother, Putai had gone to the house of the accused but he did not return back. On receiving the information that his brother had died, he went to the residence of the accused persons at Jagepura, Pawayya Colony and found that his brother hanging in the bungalow of the house of the accused persons. On 21.4.2008, his brother, Putai had gone to the house of the accused but he did not return back. On receiving the information that his brother had died, he went to the residence of the accused persons at Jagepura, Pawayya Colony and found that his brother hanging in the bungalow of the house of the accused persons. Since, the accused persons had not returned the money, therefore, his brother committed suicide. This witness has further deposed that his brother had either committed suicide by hanging or killed by the accused persons and thereafter hanged the body. 11. PW5, Jai Singh and PW6, Puran Singh have also deposed that the deceased was living with the accused persons at Delhi and engaged himself as labourer for the last 6 years. The deceased had deposited Rs.50,000/- with the accused persons and they have promised to return but not returned the money. In the month of April, the deceased went to the house of the accused persons and demanded money but they did not return the money, therefore, either the deceased had committed suicide or the accused have hanged the body after killing him. 12. The learned trial Court after appreciating the evidence available on record found that the deceased had committed suicide and that there is no evidence that the accused persons hanged the body of the deceased after killing him. 13. Section 306 of IPC deals with abetment of suicide. The said provision 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.” 14. The apex Court in Sohan Raj Sharma v. State of Haryana [2008(1) CAR (Criminal Appeal Reporter) (SC) 492], by interpreting the provision of section 306 of IPC held as under : “8. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases 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 it required before a person can be said to be abetting the commission of offence under section 306 of IPC. 9. .... .... 10. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under section 306 of IPC. 9. .... .... 10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing.These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of section 107, section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ‘Abetted’ in section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 11. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commissionof suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough {See Mahinder Singh v. State of M.P. [1995 AIR SCW 4570]}.” 15. The Supreme Court in the case of Ramesh Kumar (supra), observed that to satisfy the requirement of instigation under sections 306 and 107 of IPC, 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. 16. The Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh [ (2010)1 SCC 750 ], held as under : “17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. 16. The Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh [ (2010)1 SCC 750 ], held as under : “17. 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 this Court is clear that in order to convict a person under section 306 of 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 committed suicide.” 17. Admittedly, the appellant No.1-accused and the appellant No.2-accused are the real brothers and the appellant No.2 is the nephew of them. They were living at Delhi for earning their livelihood. The deceased was living with them at Delhifor a considerable period. 18. It is evident from the testimony of PW4, Maharaj Singh, PW5, Jai Singh PW6, Puran Singh that there was a marriage in the family of the appellants and the deceased had gone to the house of the appellants for demanding the money. 19. When the factual scenario of the case is examined, it is clear that the deceased had committed suicide due to non-return of money by the appellants. There is no evidence on record to establish that the deceased was ever provoked or encouraged or persuaded or compelled by the appellants-accused to commit the suicide. For the alleged act of non-returning the money, the proper legal action could have been taken by the deceased against the accused persons. The act of commission of the suicide by the deceased was not the consequence of any of the acts allegedly committed by the appellants-accused. 20. From the aforesaid factual scenario of the case and in the light of the provisions of law and the settled legal position discussed hereinabove, in my considered opinion there is no evidence and material available on record where from an inference of the appellants-accused having abetted the commission of suicide by the deceased may necessarily be drawn. 20. From the aforesaid factual scenario of the case and in the light of the provisions of law and the settled legal position discussed hereinabove, in my considered opinion there is no evidence and material available on record where from an inference of the appellants-accused having abetted the commission of suicide by the deceased may necessarily be drawn. Thus, from the totality of the circumstances discussed hereinabove, it cannot be said that the ingredients of section 306 of IPC have been established and, therefore, the conviction as recorded by the trial Court cannot be maintained. 21. Consequently, this appeal is allowed and the conviction of the appellants under section 306 of IPC is hereby set aside. The appellants are on bail and their bail bond stand discharged. .............