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2016 DIGILAW 70 (JHR)

Anjani Kumar v. State of Jharkhand

2016-01-08

RAVI NATH VERMA

body2016
ORDER : Invoking the revisional jurisdiction of this Court under Sections 397 and 401 of the Code of Criminal Procedure (in short 'the Code') the petitioner has questioned the legality of the order dated 22.04.2015 passed by Additional Sessions Judge-II, Bokaro in S.T. No.16 of 2015 arising out of Chas P.S. Case No.199 of 2013 whereby and whereunder the petition filed by the petitioner under Section 227 of the Code for his discharge under Section 306/34 of the Indian Penal Code, is rejected. 2. The factual score as depicted in the First Information Report lodged at the instance of one Keshav Prasad, the father of the deceased-Manisha, in short, is that her daughter Manisha was married with this petitioner on 02.03.2012 but since after marriage his daughter was subjected to physical and mental cruelty at the hands of the petitioner and other accused persons including in-laws and thereafter she started living in her Naihar and on 28.06.2013 at about 5.00 p.m. she committed suicide by hanging herself and left one suicidal note duly signed by her. 3. After completion of the investigation, chargesheet was submitted against this petitioner and the case was committed to the court of Sessions where this petitioner filed a petition for his discharge under Section 227 of the Code which was rejected by the court below vide order dated 22.04.2015 holding that there is sufficient material to show that prima facie case is made out against the accused under Section 306 of the Indian Penal Code. Hence, this revision. 4. Learned counsel appearing for the petitioner while assailing the order impugned as perverse and bad in law, seriously contended that the court below without appreciating the evidence collected during investigation rejected the prayer of the petitioner in a mechanical manner. It was further submitted that even if the case of the prosecution is accepted on its face value, still on the basis of the material brought on record by the prosecution, no offence under Section 306 of the Indian Penal Code is made out against this petitioner and the ingredients responsible to constitute the offence of abetting suicide is completely lacking. It was also submitted that the deceased after marriage had stayed in her matrimonial home only for three months and thereafter left her Sasural and started living in her Naihar, whereafter, a joint divorce suit was filed under Section 13(B) of Hindu Marriage Act in the court of Principal Judge, Family Court and there was no interaction between the parties since last one year. It was also submitted that on the date of suicide, the deceased was in her parents’ house but the court below even without appreciating the evidence as collected in Paragraph 43 of the case diary where the land lady of the house of the informant has clearly stated that the petitioner had not come to his inlaws house for the last one year, rejected the petition filed for his discharge relying upon the suicidal note without applying its judicial mind. 5. Contrary to the aforesaid submissions, learned counsel representing the State contended that the court below while rejecting the prayer for discharge has considered different Paragraphs of the case diary and has also discussed suicidal note and one C.D. (Compact Disc) relating to the alleged offence. It was also submitted that there is ample material on record to presume that the petitioner, who was the husband of the deceased abetted the commission of suicide and there is no illegality or irregularity in the order impugned. 6. Before adverting to the rival submissions of the learned counsels, I may briefly notice the scope and ambit of powers of the court below under Section 227 of the Code. Chapter XVIII of the Code lays down the procedure for trial before the court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances wherein there can be a discharge of an accused at a stage of framing charge which provides that upon consideration of record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected and bound to decide whether there is sufficient ground to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. 7. In a case, Sajjan Kumar Vs. CBI; (2010) 9 SCC 368 the Hon’ble Supreme Court while succinctly analysing the law at this point, observed in Para 19 as under: “19. 7. In a case, Sajjan Kumar Vs. CBI; (2010) 9 SCC 368 the Hon’ble Supreme Court while succinctly analysing the law at this point, observed in Para 19 as under: “19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” 8. In another case State through Inspector of Police Vs. A. Arun Kumar and Anr.; 2015(1) East Cr. C. 450 (S.C.), the Hon’ble Supreme Court on consideration of several authorities laid down a complete guideline on the scope of Sections 227 and 228 of the Code. From the ratio decided by the Hon’ble Supreme Court in the above cases, it is clear that at the initial stage, the court has to evaluate the materials and documents on record with a view to find out if the facts emerging from there taken at their face value discloses the existence of ingredients to constitute the alleged offence and also for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case or grave suspicion depends upon the facts of each case and at this stage, the Court has not to see as to whether the trial will end in conviction or not. 9. In the light of the aforesaid principle or the guidelines given by the Hon’ble Supreme Court, it is necessary to examine whether or not in the present case the court below was justified in refusing to discharge the petitioner. 9. In the light of the aforesaid principle or the guidelines given by the Hon’ble Supreme Court, it is necessary to examine whether or not in the present case the court below was justified in refusing to discharge the petitioner. Before I examine the material and evidence on record, a reference of Section 306 I.P.C. is necessary for better appreciation of the issue involved in this case. Section 306 I.P.C. reads as under: “306. Abetment of suicideIf 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.” From a bare reading of the provision, it is clear that to constitute an offence under Section 306 IPC, the prosecution has to establish: (i) that a person committed suicide, and (ii) that suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an “abetment” for the commission of the crime. The word ‘abetment’ has been defined in Section 107 I.P.C. which reads as follows: “107.Abetment of a thing - A person abets the doing of that 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 willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes of procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” From bare perusal of the aforesaid provision, it is amply clear that a person can be said to have abetted in doing a thing, if he, firstly, instigate 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, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. 10. 10. I have gone through the statement of witnesses recorded during investigation in the case diary which clearly indicates that the deceased was subjected to physical and mental torture at the hands of this petitioner which would also appear from the petition filed by the petitioner before the Family Court under Section 13(b) of the Family Court Act. It is true that the deceased was living in her father’s house when she committed suicide but ill treatment given by the husband compelled her to take steps to end her own life. Though there is a discussion about the suicide note of the deceased but it is not enclosed with the case diary. However, in the C.D. prepared by the deceased, there is a photograph of part of suicidal note. The court below in the order impugned has discussed in detail different Paragraphs of the case diary as well as the part of the suicidal note of the C.D. 11. Apparently, the deceased committed suicide after filing of a joint petition for divorce in the court of Principal Judge, Family Court, Buxer. The said petition was filed on 08.04.2013 and the deceased committed suicide on 28.06.2013. 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 suggestive of the consequence, yet a reasonable certainty to incite the consequences must be there. In the instant case, though the suicide note is note part of the case diary but from the portion of suicide note which has been captured in the compact disc (C.D.), it appears that the deceased was subjected to inhuman behaviour and cruelty at the hands of the petitioner. The evidence and material collected during investigation if taken at its face value, clearly speaks strong prima facie case or grave suspicion against the petitioner. This is not a stage to make roving enquiry into the matter or to see whether the trial will end in conviction or acquittal rather the court has to presume a strong suspicion or a strong prima facie case or grave suspicion to proceed with the case. 12. In a case Rajiv Thapar & Ors. This is not a stage to make roving enquiry into the matter or to see whether the trial will end in conviction or acquittal rather the court has to presume a strong suspicion or a strong prima facie case or grave suspicion to proceed with the case. 12. In a case Rajiv Thapar & Ors. V. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the same issue of discharge in a complaint case, lodged at the instance of father of a deceased girl that he suspects that his daughter had been poisoned, has held in Paragraph-28 as follows: “This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held”. 13. Even if the petitioner is successful in showing that since the deceased on the date of incidence was in her father’s house, created a suspicion but in the allegations levelled by the prosecution or in the circumstances as discussed in the preceding Paragraphs, it would not be permissible to discharge the accused at this initial stage before trial. 14. In view of the above discussion, I do not find any plausible ground to interfere in the order impugned. Accordingly, the revision application is, hereby, dismissed.