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Madhya Pradesh High Court · body

2015 DIGILAW 864 (MP)

Surendra Pathak v. State of M. P.

2015-08-19

S.K.PALO

body2015
ORDER : This revision is directed against the order dated 03.07.2015 passed in Sessions Trial No. 60/2014 by the Second ASJ, Sheopur by which charge has been framed under Sections 306, 420/34 of IPC against the petitioner. 2. The prosecution story in brief is that the deceased Jagdish Sharma was the maternal uncle of Anita, wife of Rahul. On the fateful day i.e. 14.06.2013 at about 10 O— clock, Jagdish Sharma came to the house of Anita. When she left to bring a glass of water for him, Jagdish poured kerosene on himself and immolated himself. When she came back to the room, she saw Jagdish burning. She shrieked. On her shout, her neighbours Madhusudan Sharma and one Arvind Sharma rushed in. They saw Jagdish burning. They tried to extinguish the fire. Jagdish was burnt seriously. Jagdish Sharma died due to 90% of burning. On Anitas intimation at the Police Station Vijaypur, merg No. 12/13 was registered under Section 174 of Cr.P.C. 3. During the enquiry, it was found that accused Surendra Pathak, the brother-in-law of Jagdish and his son, Ajay Pathak, on the pretext of fettering a job in Railways, they obtained Rs. 17 lacs (Rupees Seventeen Lacs) from deceased Jagdish Sharma and his son Brijmohan Sharma. They also obtained Rs. 5 lacs (Rupees Five Lacs) from Lalpat, Rs. 3 lacs (Rupees Three Lacs) from Dinesh Sharma, Rs. 10 lacs (Rupees Ten Lacs) from Vasudev Shrivash by cheating them to provide jobs. When Jagdish Sharma and other persons asked the accused Surendra Pathak and accused Ajay Pathak to refund their money, they did not return the same. Because of which Jagdish Sharma was feeling mentally harassed. On 14.06.2013, Jagdish Sharma at Surendra Pathaks house burnt himself to death. Therefore, the offence under Sections 306, 420 read with Section 34 of IPC was registered against the accused Surendra Pathak and Ajay Pathak. 4. After filing of the charge-sheet, the case was committed to the Court of 2nd ASJ, Sheopur. Learned Trial Court framed the charge under Section 306, 420/34 of IPC. 5. On behalf of the petitioner Surendra Pathak, the present revision has been filed under Section 397 read with Section 401 of Cr.P.C. with the request to set aside the impugned order and to acquit the petitioner from the charges. 6. To appreciate the provision under Section 306 of IPC. The same is reproduced here— 'Section 306. 5. On behalf of the petitioner Surendra Pathak, the present revision has been filed under Section 397 read with Section 401 of Cr.P.C. with the request to set aside the impugned order and to acquit the petitioner from the charges. 6. To appreciate the provision under Section 306 of IPC. The same is reproduced here— 'Section 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.' 7. It is also necessary to understand what actually constitute abetment as defined under Section 107 of IPC. 'Section 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 facct 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 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.' 8. For proper understanding the position, it would be appropriate to understand the meaning of ' instigation' . '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. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.' 9. In a similar case of Radhesyam v. State of M.P., 2014 Cr LR (MP) 416 : (2014 Cri LJ (NOC) 475 (MP)), it is held that; ' Criminal Procedure Code, 1973 — Sec. 397/401 — Order of framing charge under Section 306 of IPC — No evidence of abetment to commit suicide — Money borrowed to the deceased and demanding back of money was not an act of harassment— Demand of loan amount is not an abetment under Section 107 of IPC. — Words uttered in heat of moment does not amount to abetment— Held, order of framing charge is not sustainable and set aside.' 10. In another case of 'Ramchandra v. State of M.P.' , reported as 2009 (2) MPLJ 147 this Court has held that: 'The deceased committed suicide on account of playing dishonesty in a transaction of loan by the petitioner - The act as alleged against the petitioner does not amount to instigation nor constitutes aid in commission of the suicide by the deceased. Order framing charge against the petitioner for offence under Section 306/34 of IPC was set aside.' 11. Order framing charge against the petitioner for offence under Section 306/34 of IPC was set aside.' 11. In 'Gangula Mohan Reddy v. State of Andhra Pradesh' , reported as 2010 Legal Eagle (SC) 13 : ( AIR 2010 SC 327 ), it is held that; 'Indian Penal Code, 1860— Section 306— Abetment to suicide ' “ Conviction affirmed by H.C. — Appeal ' “In order to convict a person under Section there has to be a clear mens rea to commit the offence ' “ Also requires an active act or direct act which led the deceased to commit suicide — In the light of provision of law and the settled legal position by the judgments the conviction of appellant cannot be sustained ' “ Appeal allowed.' 12. On perusal of the statements of Madhusudan Sharma and Arvind Sharma under Section 161 of Cr.P.C., it is clear that when they heard the shout of Anita, they reached there and saw Jagdish burning. They tried to extinguish fire alongwith other neighbours. All the witnesses including Brijmohan Sharma, Vasudev Shrivash, Lalpat Rawat, Dinesh Kumar Sharma, Dwarka Prasad Sharma, it is found that the accused persons received certain amount from the deceased and this amount was not returned. Because of which, Jagdish Sharma went to the house of Surendra Pathak and immolated himself. 13. Section 306 of IPC as analyzed above require that it is to be 'abetted' by someone. The definition of Section 107 of Indian Penal Code as quoted hereinabove may be applied in the present case. The acts of the petitioners does not amount to ' instigation' by the petitioner for committing suicide, nor it can be said that the petitioner had intentionally aided in any manner in commission of the suicide to the deceased. If the petitioner dishonestly committed any cheating any money, and did not return the amount advanced to the petitioner, it does not come within the purview of 'instigation' for commission of suicide. 14. Similar view has been taken by the Apex Court in Netai Dutta v. State of West Bengal, 2005 SCC (Cri) 543 : ( AIR 2005 SC 1775 ), held that ' when the deceased could not pay the loan, he committed suicide. By that act of the petitioner, it cannot be said that the deceased instigated the petitioner to commit suicide.' 15. Consequently, this revision is partly allowed. By that act of the petitioner, it cannot be said that the deceased instigated the petitioner to commit suicide.' 15. Consequently, this revision is partly allowed. The impugned order framing of charge against the petitioner for offence punishable under Section 306/34 of IPC appears to be erroneous and is set aside. However, it is made clear that the offence under Section 420/34 of IPC would remain as it is. The petitioner is discharged from offence under Section 306/34 of IPC only. The learned Trial Court is directed to proceed with the case for offence under Section 420/34 of IPC as per law against the petitioner. Petition partly allowed.