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Madhya Pradesh High Court · body

2013 DIGILAW 478 (MP)

Gayatri v. State of M. P.

2013-04-08

Brij Kishore Dube

body2013
ORDER 1. The petitioners herein/accused have filed this petition under section 397 of CrPC challenging the order dated 1.3.2013 passed by VII Additional Sessions Judge, Gwalior in Sessions Trial No.126/13, whereby charge under section 306 of IPC has been framed against them. 2. The relevant facts for adjudication of the matter are that on receiving an information to the effect that one dead body was lying on railway track, a merg at Crime No.40/2012 under section 174 of CrPC was registered at Police Station Maharajpura, District Gwalior. The merg was inquired into and after preliminary inquiry, an offence under section 306 of IPC vide Crime No.343/12 was registered at Police Station Maharajpura, Gwalior against five accused persons. After completion of investigation, a charge-sheet was filed against the present petitioners as well as one Jaisingh Jatav 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. Learned trial Judge on the basis of the material placed on record framed charge punishable under section 306 of IPC against the present petitioners as well as co-accused, Jaisingh Jatav. The petitioners denied the charge and claimed to be tried. 4. Learned senior counsel for the petitioners submits that Jitendra Singh (the deceased) committed suicide and left one suicide note in which he stated that his wife, Rajni Chourasiya had illicit relationship with one Jaisingh Julaniya and he saw them in compromise position. Thereafter, his wife and family members of his wife threatened to kill him and his family members and also demanded money, therefore, he has committed suicide. If the entire suicide note and other evidence collected by the prosecution during the investigation is accepted in toto, no case is made out against the petitioners for framing charge under section 306 of IPC. On these grounds, learned senior counsel prays that the petitioners may be discharged from the aforesaid charge. Learned senior counsel has placed reliance on the following decisions : (i) Mahendra Singh v. State of M.P. [1995 SCC (Cri.) 1157; (ii) Sohan Raj Sharma v. State of Haryana [2008(1) CAR 492]; and (iii) Ramesh Kumar v. State of Chhatisgarh [2001(2) BLJ 113=2002 SCC (Cri.) 1088]. 5. Learned senior counsel has placed reliance on the following decisions : (i) Mahendra Singh v. State of M.P. [1995 SCC (Cri.) 1157; (ii) Sohan Raj Sharma v. State of Haryana [2008(1) CAR 492]; and (iii) Ramesh Kumar v. State of Chhatisgarh [2001(2) BLJ 113=2002 SCC (Cri.) 1088]. 5. On the contrary, learned Public Prosecutor argued in support of the impugned order and submitted that there is prima facie case made out for proceeding against the petitioners under section 306 of IPC. 6. I have considered the rival contentions of the learned counsel for the parties and perused the record. 7. Section 306 of the IPC 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.” From a bare reading of the aforesaid provision, it is clear that to constitute an offence under section 306 IPC, the prosecution has to establish : (i) that, a person committed suicide, and (ii) such suicide was abetted by the accused. In other words, an offence under section 306 would stand only if there is an “abetment”; for the commission of the crime. 8. The parameters of “abetment” have been stated in section 107 of the IPC, which defines abetment of a thing as follows : “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. Explanation 1 : A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” 9. Explanation 1 : A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” 9. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, 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. Explanation to section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under section 306 of the IPC. 10. Therefore, the question for consideration is whether the allegations levelled against the petitioners in the FIR and the material collected during the course of investigation would attract any one of the ingredients of section 107 IPC? 11. As per the said section, firstly; a person can be said to have abetted in doing of a thing, who “instigates”; and person to do that thing. The word “instigate”; is not defined in the IPC. The meaning of the said word was considered by the apex Court in Ramesh Kumar v. State of Chhattisgarh (supra), speaking for the three Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said 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. 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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. 12. Thus, to constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by “goading” or “urging forward”. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action : provoke to action or reaction” (See : Concise Oxford English Dictionary); “to keep irritating or annoying somebody until he reacts” (See : Oxford Advanced Learner’s Dictionary, 7th Edition). Similarly, “urge” means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to “goad”; or “urge forward” the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed by the apex Court in Ramesh Kumar’s case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. As observed by the apex Court in Ramesh Kumar’s case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that : (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation. 13. 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. 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. 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 commission of 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]}.” 14. The Hon’ble apex Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi) [ (2009)16 SCC 605 ], observed that the question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self. 15. Admittedly, the deceased was married with Rajni, petitioner No.2 (wrongly mentioned as Kumari) in the year 2006. The petitioner No.3, Janved Singh is the father of Rajni, while petitioner No.1, Smt. Gayatri is her sister and petitioner No.4 is husband of her sister. 15. Admittedly, the deceased was married with Rajni, petitioner No.2 (wrongly mentioned as Kumari) in the year 2006. The petitioner No.3, Janved Singh is the father of Rajni, while petitioner No.1, Smt. Gayatri is her sister and petitioner No.4 is husband of her sister. It is also admitted fact that Jitendra Singh committed suicide in the intervening night of 27-28.8.2012 and left a suicide note, which reads as under : ^^izek.k&i= eSa ftrsanz flag cjS;k iq= gjhyky cjS;k ;g izek.k djrk gw¡ fd esjs izfr tks Hkh dk;Zokgh dkuwuh gS og xyr gS vr% eSa viuh chch jtuh pkSjfl;k ls cgqr I;kj djrk gw¡ ijarq jtuh fdlh vkSj uke t; flag tqykfu;k ls xzke fpudwiqjk iksLV xksgn ftyk fHkaM dk ekLVj dk yM+dk og eSaus [kqn viuh vk¡[kksa ls jtuh dks ns[kk gS ‘kkjhfjd laca/k gSa vkSj j[krk gSA esjs ns[kus ij esjh chc jtuh vkSj mlds ekrk&firk ,oa HkkbZ iIih gjukjk;.k jkts’k lkMw fotsanz caly ‘ksjiqj okys iap’khy uxj] eqds’k fnukad 9 vxLr dks eSa llqjky i{k ds bu yksxksa us tku ls ekjus ,oa esjk ifjokj ds yksxksa dks Hkh /kedh nh ,oa ;fn eSa mudks nks yk[k :i;s ugha fn, og esjs ek¡&cki dks Hkh ekj MkysaxsA esjh iRuh xyr gS esjh ekSr ds ihNs bu lHkh dk gkFk gSA jtuh tunsoflag pksjfl;k lkMw fotsanz flag caly] iIih mQZ gjukjk;.k xaxk nsoh] xk;=h] jkts’k dk lkyk eqds’kA vr% eSa bl i= ds ek/;e ls ;g lwfpr djrk gw¡ fd esjh ekSr ,oa cckZnh ifjokj dh esa bu lHkh yksxksa dk gkFk gSA izkFkhZ ftrsanz flag cjS;k ikuh dh Vadh ds ikl turk ekaVsljh Ldwy ds lkeus] iksjlk ftyk eqjSukA esjh ekSr dk dkj.k esjs llqjky okys gSaA vr% eSa vius yM+ds dks vius ekrk&firk ds lkFk j[kuk pkgrk gw¡A jtuh vius vkf’kd ds lkFk jgsA bl fdz;k esa esjs ek¡] ikik dk dksbZ dkj.k ugha gS blds fy, esjs llqjky okys gh ftEesnkj gSaA esjk dsl iM+ko Fkkuk efgyk esa gSA 9713635417 eEeh** 16. In the present case, charge against the petitioners is that they mentally tortured Jitendra Singh, the deceased, and abetted him to commit suicide by the said act of mental torture. 17. In the present case, charge against the petitioners is that they mentally tortured Jitendra Singh, the deceased, and abetted him to commit suicide by the said act of mental torture. 17. Punno Bai, who is mother of the deceased stated in her statement recorded under section 161 of CrPC that her son, Jitendra was married to Rajni, the daughter of Janved Chourasiya, resident of Vivek Nagar, Thatipur, Gwalior as per Hindu rites in the year 2006. There was a quarrel between the husband and wife as her daughter-in-law, Rajni was not having good character and having illicit relationship with Jai Singh s/o Purshottam Jatav, resident of Chankupura, Police Station Gohad. On this, there was a dispute between them. Jaisingh used to talk with Rajni on phone. Her daughter-in-law, Rajni does not want to reside at her (Rajni) in-laws house at Vijaypur, hence, a report to this effect was lodged at Police Station, Vijaypur by her son, Jitendra. Her daughter-in-law, Rajni and her (Rajni) father Janved Chourasiya lodged a false report against her son, the deceased and her (Punno Bai) and family members at Police Station, Padav, District Gwalior regarding harassment and demand of dowry, therefore, on 27.8.2012 she and other persons were calleld by the police for conciliation at Mahila Paramarsh Kendra, Padav, District Gwalior. She, her son and other persons went there and conciliation took place. Thereafter, she along with her husband returned back to Vijaypur and her son, Jitendra was left at the house of his (Jitendra) in-laws at Gwalior. In the night, Rajni Chourasiya, Gayatri Chourasiya, Janved, Brijendra Jatav and Jai Singh have caused marpeet with her son, Jitendra and they abetted her son to commit suicide. In the night of 27.8.2012 at about 10-11 p.m., she received a call on her mobile of her son, Jitendra who stated that above five persons have committed marpeet with him on account of torture, annoyance and instigation her son committed suicide. Similar statement has been given by the father of the deceased, Harilal. 18. In the night of 27.8.2012 at about 10-11 p.m., she received a call on her mobile of her son, Jitendra who stated that above five persons have committed marpeet with him on account of torture, annoyance and instigation her son committed suicide. Similar statement has been given by the father of the deceased, Harilal. 18. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of mental torture, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do, therefore, it appears that the conduct of the accused persons was such that the deceased was left with no other option except to end his life and, therefore, clause first of section 107 IPC was attracted. 19. According to the provisions of sections 227 and 228 of CrPC, it is for the trial Court to consider the material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not? By considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed. 20. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Kumar Bhunja and others [ AIR 1980 SC 52 ], a three Judge Bench of the Supreme Court held as under : “18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh [ AIR 1977 SC 2018 ], the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of sections 227 and 228 of the Code of Criminal Procedure, 1973. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of sections 227 and 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.” (Emphasis supplied) 21. The apex Court in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others [ AIR 1990 SC 1962 ], held as under : “It seems well settled that as the sections 227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” 22. In the case of Central Bureau of Investigation, Hyderabad v. K.Narayana Rao [2012 AIR SCW 5139], the apex Court considered its earlier authorities about the scope of sections 227 and 228 of CrPC, and held that for framing of charge, a roving enquiry in pros and cons of matter and weighing of evidence as is done in trial is not permissible at this stage. The charge has to be framed if Court feels that there is strong suspicion that accused has committed offence. Thus, even if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, a charge can be framed. 23. Resultantly, in the facts and circumstances of the case, the settled legal position and for the reasons given hereinabove, I do not find any infirmity and illegality in the impugned order that may call for any interference in exercise of the revisional jurisdiction under section 397 of CrPC. This revision petition is devoid of merit and is, therefore, dismissed. ............