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2015 DIGILAW 112 (MP)

Pappu Khare v. State of M. P.

2015-01-29

S.K.GUPTA

body2015
Judgment Sushil Kumar Gupta, J. 1. By invoking the supervisory jurisdiction of this Court petitioner has preferred this petition under Section 397/401 of the Code of Criminal Procedure 1973 (in short "the Code") calling in question the impugned order dated 19.06.2012 passed by First Additional Sessions Judge Dabra, District Gwalior in S.T. No.218/2012 whereby the charges of offence punishable under Section 306 of Indian Penal Code (in short "the Penal Code") was framed against the petitioner. 2. The prosecution case, in short, is that on 02.01.2012 at 22:45 o'clock Dr. D.R. Sagar Civil Hospital Dabra informed at Police Station Dabra that a woman named Bhagwati Valmik has been brought in the hospital in dead condition. On this information, a Merg No. 3/2012 was registered. During Merg enquiry, it was found that deceased-Bhagwati has died because the petitioner was having illicit relation with wife of Prakash Valmeek of Badoonkala. Because of this reason petitioner used to beat and harassed the deceased-Bhagwati. Six months before the death of the deceased the petitioner beat the deceased by means of lathi by which hand of the deceased got fractured. Thereafter the petitioner demanded Rs.One Lac, on refusal the petitioner told to kill the deceased. Because of all these reasons the deceased committed suicide by hanging herself. Thereafter, offence under Section 306 of the Code has been registered against the petitioner and after investigation charge-sheet has been filed. After receiving the case on committal, Trial Court framed the charges against the petitioner under Section 306 of the Penal Code. 3. Learned counsel appearing for the petitioner vehemently submitted that the ingredients of the offence under Section 306 of the Code are not fulfilled and no iota of evidence is available on record to implicate the petitioner. He further submitted that learned Trial Court has erred in law in framing charge against the petitioner for the offence punishable under Section 306 of the Code while no material evidence available on record to prove the fact that the petitioner has abated or instigated the deceased to commit suicide. To Bolster his submissions counsel relied on the judgment of Hariom Vs. State of MP reported in 2007 (1) MPLJ 195 , Santosh Vishwakarma and another Vs. State of MP (Now CG) reported in 2004 (3) MPHT 57 (CG), State of M.P. Vs. Ganesh Ram reported in 1997 (II) MPJR 163 , Dayalan Babu & another Vs. To Bolster his submissions counsel relied on the judgment of Hariom Vs. State of MP reported in 2007 (1) MPLJ 195 , Santosh Vishwakarma and another Vs. State of MP (Now CG) reported in 2004 (3) MPHT 57 (CG), State of M.P. Vs. Ganesh Ram reported in 1997 (II) MPJR 163 , Dayalan Babu & another Vs. State reported in 2011 CRLJ 359, Mahendra Singh and another VS. State of M.P. reported in 1995 AIR SCW 4570, Bhagwan Das Vs. Kartar Singh and others reported in AIR 2007 SC 2045 , S.S. Chheena Vs. Vijay Kumar Mahajan and another reported in (2010) 12 SCC 190 and M. Mohan Vs. State reported in AIR 2011 SC 1238 . 4. Learned PP for the respondent/State has fully supported the impugned order passed by the Lower Court and submitted that there is prima facie evidence available on record against the petitioner for framing the charges under Section 306 of the Code. He further submit that Smt. Geetabai, Anand Kumar and Mohan are respectively mother and brothers of the deceased have categorically stated in their statement that the deceased was depressed and disappointed as petitioner was having illicit relation with one Meena. Hence, learned PP prayed for dismissal the petition. 5. Firstly I would like to deal with the relevant provision of Sections 306, 107 and 109 of IPC. Section 306 - Abetment of suicide Code reads as under: 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. Section 107 - Abetment of a thing reads as under: 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 lakes 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. 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. Section 109 - Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment reads as under: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. 6. As section 306 of IPC makes abetment of commission of suicide punishable, therefore, making liable for an offence punishable under Section 306 of IPC, it is the duty of prosecution to establish that such person has abated the commission of suicide and for the purpose of determining the act of the accused, it is necessary to see that his act must fall within the purview in any of the three categories as enumerated under Section 107 of the Code and, therefore, it is necessary to prove that the said accused has instigated the person to commit suicide. 7. When I considered the facts of the present case in the light of the above Principal of law, it becomes candidly clear that there is no abetment and instigation caused by the petitioner to drove her to commit suicide. Although witness stated that petitioner having illicit relation with another woman meena and even on objecting did not stop these relation due to which the deceased was depressed. After that deceased committed suicide but that not amounts to abetment or instigation within the purview of Section 107 of IPC. 8. Our High Court and Hon'ble Supreme Court has considered the scope of Sections 107 and 306 of the Code in many cases. In Sanju Vs. State of M.P. (2002) 5 SCC 371 the Hon'ble Apex Cout in paragraphs 9 to 12 observed as under: "Para 9. In Swamy Prahaladdas Vs. 8. Our High Court and Hon'ble Supreme Court has considered the scope of Sections 107 and 306 of the Code in many cases. In Sanju Vs. State of M.P. (2002) 5 SCC 371 the Hon'ble Apex Cout in paragraphs 9 to 12 observed as under: "Para 9. In Swamy Prahaladdas Vs. State of M.P. And another, 1995 Supp (3) SCC 438, the appellant was charged for an offence under Section 306 of IPC on the ground that the appellant during the quarrel is said to have remarked the deceased "to go and die". This Court was of the view that mere words uttered the accused to the deceased "to go and die" were not even prima facie enough to instigate the deceased to commit suicide. 10. In Mahendra Singh Vs. State of M.P. 1995 Supp (3) SCC 731, the appellant was charged for an offence under Section 306 of IPC basically based upon the dying declaration of the deceased, which reads as under: My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning. 11. This Court, considering the definition of 'abetment' under Section 107, of the Code, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased. 12. In Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618 , this Court while considering the charge framed and the conviction for an offence under Section 306 of the Code on the basis of dying declaration recorded by an Executive Magistrate, which she had stated that previously there had been quarrel between he deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Acquitting the accused this Court said: A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord the difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty." 9. For framing of charge the Hon'ble Apex Court in the matter of State of MP Vs. S.B. Johari and others reported in 2000 (3) MPHT 164 : 2000 (1) JLJ 142 has been held that - "At the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed in the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, can not show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial." 10. In the matter of Niranjan Singh Karam Singh Punjabi etc. Vs. Jitendra Bhimraj Bijjayya and others, etc., reported in (1990) 4 SCC 76 , the Hon'ble Apex Court has held that :- "At the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for the limited purpose, but it is not required to marshal it with a view to decide the reliability thereof." 11. In the matter of M. Mohan Vs. State reported in AIR 2011 SC 1238 , the Hon'ble Apex Court has held that :- 45. The Court may peruse the records for the limited purpose, but it is not required to marshal it with a view to decide the reliability thereof." 11. In the matter of M. Mohan Vs. State reported in AIR 2011 SC 1238 , the Hon'ble Apex Court has held that :- 45. 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. 46. The intention of the Legislature and the ratio of the cases decided by this 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. 12. However in my opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with section 107 of the Code, if the wife commit suicide. 13. In the present case also evidence collected by the prosecution indicates that there is no overt act fall within the purview of Sections 107 and 109 of the Code and therefore, prima facie no offence punishable under Section 306 of the Code is made out against the petitioner. For the forgoing reasons, I am of the opinion that the impugned order framing charge under Section 306 of the Code of the petitioner/accused deserves to be set aside. 14. In the facts and circumstances of the case, for the forgoing reasons, I am of the considered opinion that impugned order framing charge against the petitioner under Section 306 of the Code is hereby set aside. The petitioner is discharged from the charge of offence punishable under Section 306 of the Code. 15. Accordingly, this revision petition is hereby allowed as aforesaid. 16. Copy of this order be sent to the concerning Court for necessary compliance.