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2015 DIGILAW 78 (MP)

Gajendra Singh v. State of M. P.

2015-01-20

SUSHIL KUMAR GUPTA

body2015
ORDER 1. The petitioner has challenged the order dated 7.3.2014 passed by Additional Sessions Judge, Gohad in S.T. No.17/2012 whereby the charges of offence punishable under section 306 of Indian Penal Code (in short “the Code”) was framed against the petitioner. 2. The prosecution case, in short, is that on 21.5.2011 at 8 o’clock Gandharv Singh-husband of the deceased informed at Police Station Gohad that his wife Anita got unconscious after consuming poisonous substance and she was admitted in KDJ Hospital Morar. She has died today at 1:30 o’clock at night. On this information, a Merg was registered. During Merg enquiry, it is found that deceased Anita has died due to consuming poisonous substance after being harassed by the act of the petitioner as he took her jewelery but did not return even after asking by the deceased. 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 charge against the petitioner under section 306 of the 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 the deceased to commit suicide. To bolster his submissions counsel relied on the judgment of Hariom v. State of M.P., reported in 2007(1) MPLJ 195 , and Santosh Vishwakarma and another v. State of M.P. (Now C.G.), reported in 2004(3) MPHT 57 (C.G.). 4. Learned Public Prosecutor 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 Govind and Narayan Singh, Jamuna Devi, Gandharv Singh respectively brothers, mother and husband of the deceased had categorically stated in their statement that the deceased was depressed as petitioner took the jewelery but did not return even after asking. Hence, learned Public Prosecutor prayed for dismissal the petition. 5. He further submit that Govind and Narayan Singh, Jamuna Devi, Gandharv Singh respectively brothers, mother and husband of the deceased had categorically stated in their statement that the deceased was depressed as petitioner took the jewelery but did not return even after asking. Hence, learned Public Prosecutor prayed for dismissal the petition. 5. Before considering the factual aspect of the case, it would be proper to have a look on the 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. 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. 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 took the jewellery of the deceased and did not return even after asking, due to which she 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 v. 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 v. 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 v. 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 elderbrother’s wife) harassed me. 10. In Mahendra Singh v. 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 elderbrother’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 v. 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 betweent 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. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestice 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 abeting the offence of suicide should be found guilty.” 9. For framing of charge the Hon’ble apex Court in the matter of State of M.P. v. 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. v. 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 present case also evidence collected by the prosecution indicates that there is no overtact 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. 12. 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. 13. Accordingly, this revision petition is hereby allowed as aforesaid. The petitioner is discharged from the charge of offence punishable under section 306 of the Code. 13. Accordingly, this revision petition is hereby allowed as aforesaid. 14. Copy of this order be sent to the concerning Court for necessary compliance. .............