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2015 DIGILAW 905 (MP)

Raj Kishore v. State of Madhya Pradesh

2015-08-28

S.K.GUPTA

body2015
ORDER : S.K. GUPTA, J. 1. By this criminal revision under section 397 read with section 401 of Cr.P.C. 1973 (in short "the Code") petitioners have challenged the order dated 31.10.2013 passed by the Second Additional Sessions Judge Sheopur in S.T. No. 95/2013, whereby the charges of offence punishable under section 306, 342 and 330 of Indian Penal Code 1860 (in short "the Penal Code") have been framed against the Petitioners. The prosecution case, in short, is that on 1.7.2013 a report was lodged at Police Station Agar against the petitioners Raj Kishore and Rinku under sections 342, 306/34 of IPC by the father of the deceased alleging therein that one Vinod used to run a Flour mill in the campus of the complainant-Kamlesh and when he asked Vinod to vacate the premises the real brother of Vinod namely Raj Kishore and his nephew Rinku @ Pradeep had leveled false allegation against Luvkush son of complainant Kamlesh and the petitioners took him along with them and confined him and caused injuries to him, to be precise the petitioners had involved Luvkush in one false theft case and due to which he had committed suicide by jumping in the well. On this complaint, police lodged an FIR against the petitioners and charge-sheet was filed for the offences punishable under sections 342, 306/34 of the Penal Code and the case was committed. 2. The learned Additional Sessions Judge after considering the evidence collected by the prosecution, framed the charges against the petitioners for the offence punishable under sections 306, 342 and 330 of the Penal Code. 3. Learned counsel appearing for the petitioners submitted that there is no evidence available on record against the petitioners for framing of charge under section 306 of the Penal Code. He further submitted that even if all the allegations levelled against the petitioner are taken to be true even then no offence is made out under section 306 of the Penal Code. He further submitted that even if all the allegations levelled against the petitioner are taken to be true even then no offence is made out under section 306 of the Penal Code. Learned counsel further submitted that in shop of the father of the deceased one Vinod used to run a Flour Mill, few days prior to the incident the father of the deceased had asked Vinod to vacate the premises which Vinod had willfully accepted and asked for two three days to vacate the same and on 1.7.2013 deceased Luv Kush had stolen some money of the petitioners and that this fact was admitted as is apparent from the statement of the villagers namely Rakesh, Ramjilal, Mahesh and Mangilal and it is further submitted that the deceased had said to the petitioners to come along with him and he will return the money and suddenly he jumped into the Well and committed suicide. Learned counsel further submitted that the ingredients of section 107 of Penal Code abetment to suicide are not being fulfilled, therefore, section 306 of the Penal Code in anyways not made out against the petitioners. Learned counsel further submitted that if no instigation as defined under section 107 of the Penal Code is proved by the accused then the person cannot be held guilty for the offence under section 306 of the Penal Code. 4. Per contra, learned Public Prosecutor for respondent/State opposes the submissions advanced by the learned counsel for the petitioners and further supported the impugned order for framing of charges and prays for dismissal of the revision. 5. Having heard the learned counsel for the parties and perused the entire record. 6. Before coming to the factual aspect of the case, it will be useful to reproduce the relevant provisions of Section 306, 107 and 109 of the Penal Code which 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. 107. 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. 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. 109. Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment, 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" 7. During the course of argument, learned counsel for the petitioners has challenged only that part of the impugned order by which the charge under Section 306 of the Penal Code has been framed against the petitioners. 8. As Section 306 of IPC makes abetment of commission of suicide, therefore, making liable for an offence punishable under Section 306 of the Penal Code, it is the duty of prosecution to establish that such person who abetted 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 Penal Code and, therefore, it is necessary to prove that the said accused has instigated the person to commit suicide. 9. When I calibrate the facts of the present case in the light of the above principle of law, it becomes crystal clear that there is no abetment and instigation caused by the petitioners to drove him to commit suicide by jumping in the well. 9. When I calibrate the facts of the present case in the light of the above principle of law, it becomes crystal clear that there is no abetment and instigation caused by the petitioners to drove him to commit suicide by jumping in the well. Although witnesses stated that the petitioners have made false allegations against the deceased Lavkush that he had stolen some money from the Flour Mill and they had tied and beaten him due to which Luvkush committed suicide by jumping in the well. Prima facie also it is evident from the statement of witnesses that the petitioners voluntarily causes hurt for the purpose of extorting confession and to compel restoration of alleged theft money but inspite of that, there is no iota of evidence available on record that deceased Lavkush committed suicide on the abetment or instigation of the petitioners. 10. The Hon'ble Supreme Court and the High Court have considered the scope of Section 107 and 306 of the Code in many Cases. In Sanju v. State of M.P., (2002) 5 SCC 371 , the Apex Court has observed as under: "9. In Swamy Prahaladas v. State of M.P. 1995 SCC (Cri) 943 the appellant was charged for an offence under Section 306 the Code on the ground that the appellant during the quarrel is said to have remarked to the deceased "to go and die". This Court was of the view that mere words uttered by 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 SCC (Cri) 1157 the appellant was charged for an offence under Section 306 the Code 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 and 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 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. 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 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 4 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 the Code on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the 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 bad set herself on 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 differences in domestic life quite common to the society to which the victim belonged and such petulance, discord the differences 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." 13. In the matter of M. Mohan v. State, reported in AIR 2011 SC 1238 , the Hon'ble Apex Court has held as under : "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 of IPC there has to be a clear mens rea to commit the offence. 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 of 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." 14. In view of the above discussion and after considering the factual aspect as well as the legal position, in my opinion, mere making allegations of theft of money and beating to deceased for the purpose of extorting confession and to compel restoration of alleged theft money does not attract Section 306 read with Section 107 of the Penal Code, if the deceased commits suicide. 15. Therefore, in the present case, the evidence collected by the prosecution indicates that there is no overt act fall within the purview of Sections 107 and 109 of the Penal Code, therefore, prima facie no offence punishable under Section 306 of the Penal Code is made out against the petitioners. 16. For the foregoing reasons, I am of the considered opinion that the impugned order framing charge only with respect to under Section 306 of the Penal Code deserves to be set aside. Therefore, the petitioner is discharged from the charge of offence punishable under Section 306 of the Penal Code. 17. So far as the framing of charges under Section 330 and 342 of the Penal Code is concerned, prima facie, there is sufficient evidence available against the petitioners for framing the charges. The learned counsel for the petitioners also has not challenged this part of framing of charge against them. Therefore, I am not inclined to interfere in the impugned order with regard to framing of charges under Section 330 and 342 of the Penal Code. 18. Accordingly, this petition is hereby partly allowed as aforesaid. Copy of the order be sent to the concerned Court for information and necessary compliance.