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2015 DIGILAW 314 (RAJ)

Kheta Ram : Vijesh v. State of Rajasthan

2015-02-04

BANWARI LAL SHARMA

body2015
JUDGMENT 1. - Since both the revision petitions arise out of same impugned order and a short question is involved, therefore, with the consent of the parties, both these revision petitions were heard together and are being decided by this common order at this stage. 2. The petitioners have preferred these revision petitions against the order dated 20.06.2014 passed by the learned Additional Sessions Judge, No.6, Jodhpur Metropolitan in Sessions Case No.4/2014 whereby he has ordered to frame the charge against the petitioners for the offence under Section 306/34 IPC. 3. The brief facts of the case are that on 09.01.2014, one Mangla Ram, father of deceased Manohar Lal, lodged a written report alleging therein that his son (deceased) was a property dealer and on that day, when he did not return to home, he made inquiry about him then he came to know that his dead body is lying in an under-construction building, where he committed suicide. On this report, the SHO, PS Luni, Jodhpur registered Marg No. 2/2014 and initiated inquiry under Section 174 Cr.RC. On 10.01.2014, the complainant again lodged a written report alleging inter alia that the petitioners-accused pressurised his son to pay the due amount to them and under this pressure, his son committed suicide and a suicide note was also found in his pocket. 4. On the basis of the aforesaid report, C.R. No.7/2014 was registered under Section 306/34 IPC and investigation commenced. 5. After investigation, the police filed challan before the court of the learned Additional Chief Metropolitan Magistrate, No.4, Jodhpur Metropolitan from where the case was committed to the court of Learned Sessions Judge, Jodhpur Metropolitan wherefrom the case was transferred to the court of 6. learned Additional Sessions Judge, No.6, Jodhpur Metropolitan (herein referred to as 'the learned court below'). The learned court below, thereafter, ordered to frame charge under Section 306/34 IPC against the petitioners vide impugned order dated 20.06.2014. Hence, this revision petition. 7. I have heard Mr. Dharmendra Surana and Mr. S.L. Sinwaria, learned counsel for the petitioner; Mr. Deepak Choudhary, learned Public Prosecutor and Mr. Devendra Mahlana, for the respondent-complainant. 8. The learned court below, thereafter, ordered to frame charge under Section 306/34 IPC against the petitioners vide impugned order dated 20.06.2014. Hence, this revision petition. 7. I have heard Mr. Dharmendra Surana and Mr. S.L. Sinwaria, learned counsel for the petitioner; Mr. Deepak Choudhary, learned Public Prosecutor and Mr. Devendra Mahlana, for the respondent-complainant. 8. The learned counsels for the petitioners submitted that the learned court below has erred in framing charge for the offence under Section 306/34 IPC as in order to bring out the charge under Section 306 IPC, specific abetment as contemplated in Section 107 IPC on the part of the accused is required. In the present case, from the record, it was the case of the complainant himself that there was some transaction of money between the petitioners-accused and deceased and when the petitioners-accused demanded their money back and when the cheques were dishonoured and proceedings under Section 138 of the Negotiable Instruments Act were initiated, the deceased committed suicide, which is not an offence and this does not amount to abetment as contemplated under Section 107 IPC. Thus, the learned court below has erred in framing the charge for the offence under Section 306/34 IPC vide impugned order, which deserves to be set aside. He has placed reliance upon the judgments delivered in the case of Manish Kumar Sharma v. State of Rajasthan, 1995 Cr.L.J. 3066 , Col. J.S. Ghura v. State of Rajasthan [(1996) 1 RLW (Raj.) 487] , Damodar Sharma v. State of Rajasthan [(2006) 2 RLW (Raj.) 1588] and Madan Mohan Singh v. State of Gujarat & Anr. [ 2010(6) Supreme 376 ]. 9. Per contra, learned Public Prosecutor and learned counsel for the respondent-complainant supported the impugned order and submitted that while framing the charge, the court has to see as to whether on the basis of the material available on the record, prima facie case is made out and the learned court below, while considering the material available on record, has rightly found prima facie case against the petitioners-accused and has rightly framed the charge. 10. I have considered the submissions made by the learned counsel for the parties and perused the record.Section 306 IPC reads as under:- "306. Abetment of suicide. 10. I have considered the submissions made by the learned counsel for the parties and perused the record.Section 306 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." 11. For commission of offence punishable under Section 306 IPC, abetment is the necessary thing, which has been defined in section 107 IPC.Section 107 IPC, 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 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 procurer thing to be done, is said to instigate the doing of that thing. Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 12. Thus, for framing a charge for the offence under Section 306 IPC, the learned court below has to consider whether the abettors intentionally instigated with common intention or aided the commission of the suicide. 13. In the instant case, from the record it is revealed that the deceased took loan from the petitioners and issued cheques and when the cheques were dishonoured, proceedings under Section 138 of the Negotiable Instruments Act were initiated. Due to this, the deceased became pressurised and under this pressure he committed suicide. Thus, there is no evidence to show that the petitioners instigated or aided the commission of suicide by the deceased, Therefore, the essential ingredients of Section 107 IPC are missing. 13. Due to this, the deceased became pressurised and under this pressure he committed suicide. Thus, there is no evidence to show that the petitioners instigated or aided the commission of suicide by the deceased, Therefore, the essential ingredients of Section 107 IPC are missing. 13. In the case of Manish Kumar (supra), the deceased borrowed some money from the accused and he had been demanding this money very often. A coordinate Bench of this court held that demanding a sum of money given on loan is not an offence under any provision of the criminal law. 14. In the case of Col. J.S. Ghura (supra), a coordinate Bench of this court observed that the court must apply its mind to the facts of the case and to the evidence on record and should also advert to the statutory provisions in regard to the offence. 15. In the case of Damodar Sharma (supra), a coordinate Bench of this court observed that while framing a charge for offence under section 306 IPC, the learned court has to consider whether the abettor intentionally instigated or entered into a criminal conspiracy or aided the commission of the suicide. In case, there is no evidence to show that the abettor intended that suicide should be committed, then no offence under Section 306 IPC is made out. It was also observed that the framing of charge is not a mere formality but has to be done after a judicious application of mind. Learned trial court is duty bound to examine the evidence for the limited purpose of seeing whether the essential elements or ingredients of he offence are made out or not. At the time of framing of the charge, the learned trial Court is not expected to act a mouthpiece or as a mere post-office for the Prosecution. It is expected to sift the evidence to see if the offence has been committed by the alleged offender or not. 16. In the case of Madan Mohan Singh (supra), the Hon'ble Supreme Court observed as under:- "In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring about the suicide of the concerned person as a result of that abetment is required. In the case of Madan Mohan Singh (supra), the Hon'ble Supreme Court observed as under:- "In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring about the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC." 17. Abetment involves a material 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, offence under Section 306 IPC cannot be said to have been committed. The intention of the legislature and the ratio of the cases decided by this court is clear that in order lo convict a person under Section 306 IPC, there has to be a clear mens-rea to commit the offence. It also requires an active 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. 18. If the facts of the present case are carefully scrutinised and critically examined in the light of the settled legal position, the framing of charge under section 306/34 IPC against the petitioners-accused by the learned court below is found to be erroneous and unsustainable. Further, as held by a coordinate Bench of this court, demanding of money given on loan is not an offence under any provision of the criminal law. Rather, if the borrower commits suicide, they will lose their money. Thus it cannot be held that the petitioners, in any way, instigated or aided the deceased to commit suicide. 19. Consequently, these revision petitions deserve to be allowed, which are hereby allowed and the impugned order dated 20.06.2014 framing charge under Section 306/34 IPC against the petitioners is hereby quashed and set aside and the petitioners are discharged from the offence punishable under Section 306/34 IPC. 20. A copy of this order be sent to the learned court below for necessary action.Second Bail Applications allowed. *******