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Madhya Pradesh High Court · body

2016 DIGILAW 1155 (MP)

Phool Singh v. State of M. P.

2016-12-16

J.P.GUPTA

body2016
ORDER 1. The petitioner herein/accused has filed this criminal revision under sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, the Code) challenging the legality and validity of the impugned order dated 3.11.2015 passed by Ist Additional Sessions Judge, Guna District Guna in Sessions Trial No.160/2015 whereby charge under sections 306 and 354 IPC has been framed against him. 2. The factual matrix attending the present case reveals that on 8.10.2014 near about 5.00 p.m. the deceased set ablaze herself and taken to the hospital where her dying declaration was recorded by treating Doctor where she did not level any allegation on anybody about the incident, thereafter on 23.10.2014, she, scummed on account of injury sustained to her. During the Merg intimation near about after five months of the incident, deceased mother Kesar Bai and Brother Dharmendra disclosed that when they met to the deceased in the hospital, during the treatment deceased disclosed that applicant being elder brother of her husband had evil eye on her and time to time try to harass her and refused to return borrowing money of Rs.20,000/-, therefore, she was annoyed and under stress and tried to commit suicide by pouring kerosene on her body and lit fire. Therefore, on 13.5.2015, Crime No.104/2015 offences under sections 306 and 354 of IPC was registered against the applicant/accused. During the investigation, other relatives of the deceased Kishan, Kamla Bai and Pappu also claimed to disclose the aforesaid fact to them by the deceased during the treatment in the hospital. After completing the investigation, charge sheet was filed against the petitioner herein/accused before the Judicial Magistrate, First Class, which on its turn committed the case to the Court of Sessions from where it was received for the trial. 3. The learned trial Judge on the basis of the material placed on record framed charge punishable under sections 306 and 354 of IPC against the petitioners. The petitioner denied the charge and claimed to be tried. 4. Learned counsel for the petitioner submits that the dying declaration given by the deceased in the hospital on 8.10.2014, she has mentioned nothing about the allegations levelled against the petitioner which are an afterthought. Hence, all the allegations are false, concocted and cannot be sustained in the eye of law. 4. Learned counsel for the petitioner submits that the dying declaration given by the deceased in the hospital on 8.10.2014, she has mentioned nothing about the allegations levelled against the petitioner which are an afterthought. Hence, all the allegations are false, concocted and cannot be sustained in the eye of law. The statements of Kesharbai and Dharmendra, mother and brother of the deceased respectively and Kishan, Kamla Bai and Pappu are false, therefore, the same cannot be given any weightage. As such, even if the entire prosecution case is accepted in toto even then also, no case under sections 306 and 354 of IPC is made out as the necessary ingredients are totally missing. On these grounds, learned counsel prays that the petition may be allowed and the charges framed against the petitioner may be quashed. 5. In response, learned Public Prosecutor has argued in support of the impugned order and submits that the deceased poured kerosene and lit fire because the petitioner used to harass and had an evil eye on her and was not returned the loan amount, therefore, she committed the suicide. 6. Learned counsel for the complainant assisting the State counsel has argued in support of the impugned order. 7. I have considered the rival contentions of the learned counsel for the parties and perused the record. 8. For framing charge under section 306, Indian Penal Code, it is necessary that there should be material to indicate the accused has abetted the deceased to commit suicide. Section 306 of Indian Penal Code reads as under :- “Section 306 : - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with may extend to ten years, and shall also be liable to fine.” Abetment has been defined in section 107 of Indian Penal Code which reads as under :- “Section 107 - 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. 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 facilitates the commission thereof is said to aid the doing of that act.” 9. Section 306 of Indian Penal Code makes abetment of the commission of suicide punishable, therefore, making liable for an offence punishable under section 306 of Indian Penal Code, it is a duty of the prosecution to establish that such person has abetted the commission of suicide and for the purpose of determining the act of accused it is necessary to see that his act must fall in any of the three categories as enumerated under section 107 of the Indian Penal Code. It is necessary to prove that the said accused instigated the person to commit suicide or engaged himself with one or more other persons in any conspiracy for seeing that the deceased commits suicide. 10. In Sanju @ Sanjay Singh Senger v. State of M.P. [ 2002(2) JLJ 275 = (2002)5 SCC 371 ], the Supreme Court observed as under :- 6. Section 107 of IPC. Defines abetement to mean that a person abets the doing of a thing if he firstly, 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, an in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. 10. This Court, considering the definition of “abatement” under section 107 IPC, found that the charge and conviction of the appellant for an offence under section 306 is not sustainable merely on the allegation of harassment of the deceased. This Court further held that neither of the ingredients of the abetment are attracted on the statement of the deceased. 11. The Supreme Court further observed in paragraph 12 of the said decision that the word “instigate” denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of means rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with means rea. Presence of means rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with means rea. The words expressed in the case before the Supreme Court were “to go and die”. As a result of such an utterance, the deceased went and committed suicide. Yet, the Supreme Court was of the view that an offence under section 306 of IPC was not made out because the element of means rea was missing. 12. In Netai Dutta v. State of West Bengal [2005 AIR SCW 1326], the Supreme Court reiterated the same view that an offence under section 306 of IPC would stand only if there is an abetment for the commission of the crime. The Supreme Court observed that the parameters of ‘abetment’ have been stated in section 107 of IPC. 13. Reference further may be made to the decision of this Court in the case of Babbi @ Jitendra and others v. State of M.P. [ 2008(III) MPWN 8 = 2008(2) MPHT 160 ], wherein it has been held as under : - 11. A person is said to ‘instigate’ another to an act, when he actively suggests or stimulates him to the act by means of language, direct or indirect whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word ‘instigate’ means to goad or urge forward or to provoke, incite, urge or encourage to do an act. 12. On examining the facts of the present cases as they are, it appears that none of the accused goaded or urged forward, provoked, incited or urged or encouraged the deceased to commit suicide. They merely refused to return or refund the money of deceased allegedly kept by them. They never intended that deceased should commit suicide. 13. Since there is absolutely no material on record to indicate that petitioners in any manner instigated, incited or provoked the deceased to commit suicide or to indicate any intention on their part that the deceased should commit suicide, it cannot be held that petitioners in any manner abetted deceased to commit suicide. In the absence of essential ingredient of abatement, no charge for the offence under section 306 of Indian Penal Code can be framed against the accused persons. 14. In the absence of essential ingredient of abatement, no charge for the offence under section 306 of Indian Penal Code can be framed against the accused persons. 14. Having kept in mind aforesaid legal provisions and pronouncement of the Courts, on taking into consideration of the statements of Kesharbai and Dharmendra, Kishan, Kamla Bai and Pappu, it is crystal clear that the accused/petitioner has not provoked or incited or urged or encouraged the deceased to commit suicide, therefore, there was no ground made out for framing of the charge against the petitioner for abetment. The only allegation made against the present petitioner by these witnesses is that the accused/petitioner did not pay any heed to return bgack Rs.20,000/- taken from the deceased as loan and also had evil eye and harassed her. 15. Hence, even if the entire prosecution case and the material available on record is considered in its totally, there is no direct or indirect connection can interfered to that the aforesaid alleged act of the applicant was intended to instigate the deceased to commit suicide. It may happens that the cause of commit suicide of the deceased was the alleged act of the applicant but merely on this ground applicant cannot be liable for instigating the deceased to commit suicide. As there is absence of essential ingredients of abatement as indicated above, therefore, no charges for the offence under section 306 of IPC can be framed. Similarly for the charges under section 354 of IPC, no averments disclosing the offence using criminal force or criminal assault on the deceased with the intention to outrage her modesty are found out in the statement of the aforesaid relatives of the deceased any merely having evil eye on a lady does not construed an offence under section 354 of IPC. therefore, learned trial Court committed error in framing the charges against the applicant. 16. Resultantly, this revision deserves to be and is hereby allowed. The impugned order dated 3.11.2015 passed by the learned trial Court framing charges against the present petitioner under sections 306 and 354 IPC is hereby set aside and the petitioner is discharged of the aforesaid offences. 17. The revision petition stands allowed and disposed of accordingly. Copy of the order be sent to the trial Court.