Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1220 (MP)

Brajesh @ Paltoo v. State of M. P.

2017-11-29

SUSHIL KUMAR PALO

body2017
ORDER 1. The petitioner/accused has preferred this revision under section 397 read with section 401 of the CrPC, to assail the order dated 10.11.2017, passed by the Sessions Judge, Hoshangabad, in S.T. No. 142/2017, wherein charge has been framed against the petitioner for offence under section 306 of IPC. 2. Bereft of the unnecessary details, the facts requisite for disposal of this revision are that the marriage of Bindu (since deceased) was fixed with the petitioner- Brajesh. Brajesh and Bindu were exchanging conversation by their cell phones. After some time, the petitioner said to Bindu that he does not like her for she is not fair in complexion. Some good proposals have been received by him. He also raised objection that Bindu was speaking to others. He suspected her to be unchaste, because of which Bindu became depressed. Once when she was speaking to the petitioner, she expressed that instead of leading such a life, she would prefer to die. In reply, the petitioner said that if she really wants to die, she may die. His burden will reduce. Because of that Bindu, later, committed suicide by hanging herself. 3. On behalf of the petitioner, it is claimed that the petitioner is innocent. The petitioner has never abetted the commission of offence under section 306 of the IPC. As the marriage was not performed, the presumption under section 113-A of the Evidence Act is not attracted. Even if the statement of the witnesses taken in its entirety, no offence under section 306 of IPC is made out, as there is no abetment to commit suicide. 4. Counsel for the petitioner placed reliance on Ved Prakash v. State of Madhya Pradesh [ 1995 CrLJ 93 ], to buttress the case. 5. Learned Goverment Advocate for the respondent/State, vehemently opposed the contentions and submitted that because of the humiliation of not marrying her and by repeatedly insisting her to die, the deceased committed suicide. Hence, the order impugned framing charge under section 306 of the IPC, does not call for any interference. 6. Perused the police diary. 7. The post-mortem report dated 23.5.2017 reveals that Bindu died due to asphyxia as a result of ante mortem hanging. As per the statement of the parents including Manmohan Yadav, Bindu was found hanging in her room at about 2.30 p.m. She was immediately rushed to the hospital but she was declared dead. 6. Perused the police diary. 7. The post-mortem report dated 23.5.2017 reveals that Bindu died due to asphyxia as a result of ante mortem hanging. As per the statement of the parents including Manmohan Yadav, Bindu was found hanging in her room at about 2.30 p.m. She was immediately rushed to the hospital but she was declared dead. Two months earlier to the incident, her engagement was done with the petitioner. “Phaldan” of Bindu was to be performed on 22.3.2017. After speaking to each other, their relation became estranged. She was then repeatedly harassed by the petitionerBrajesh, stating that she is not fit for the petitioner due to her complexion. He wanted to leave her. Several offers of marriage coming to him. She was also being suspected, by the petitioner, of loose character because of which she remained silent and uncommunicative. It is because of the petitioner's harassment, she committed suicide. 8. In this context, it would be appropriate to understand the provisions of section 306 of IPC which read 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.” “It is also necessary to understand what actual constitute “abetment” under section 107 of IPC, which reads as under:- “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 willful misrepresentation, or by willful 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. Explanation 1 : A person who by willful misrepresentation, or by willful 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. 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 that act.” 9. In the case of Babbi @ Jitendra and others v. State of M.P. [ 2008 (III) MPWN 8 = 2008(2) MPHT 160 ], it is held that:- (i) Penal Code, 1860, section 107- Abetment - is constituted by instigating a person to commit an offence- Engaging in conspiracy to commit it- Intentionally aiding a person to commit it. (ii) Word and Phrases - Word 'instigate'- Means to goad or urge forward to provoke, incite, urge or encourage to do an act.” 10. Even if the prosecution evidence is taken in it's entirety, the offence under section 306 of IPC is not made out, for there is no instigation or goading by the petitioner. 11. Abetment involves a mental process of instigating a person or intentionally aiding a person in committing of a thing. Without a positive act, on behalf of the accused to instigate or aid in committing suicide, conviction cannot be based. 12. In the case of Madiya @ Mahadev v. State of M.P. [ 2006(2) JLJ 296 = 2006(1) MPLJ 583 ], it is held that :- As section 306 of Indian Penal Code makes abetment of commission of suicide punishable, therefore, making liable for an offence punishable under section 306, 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 the accused it is necessary to see that his act must fall in any of the 3 categories as enumerated under section 107 of the Indian Penal Code. On 21.2.2005 the accused petitioner was trying to outrage the modesty of the deceased girl and on 23.2.2005 she hanged herself by neck and committed suicide. On 21.2.2005 the accused petitioner was trying to outrage the modesty of the deceased girl and on 23.2.2005 she hanged herself by neck and committed suicide. The period of two days which elapsed between two incidents shows that, it was not the act of the accused petitioner which instigated her to commit suicide, but it was defamation and feeling of shame which ultimately become the cause of commission of suicide. Therefore, the trial Court committed a mistake of law in framing charges against the accused for offence punishable under section 306 of the Indian Penal Code, revision petition succeeds. Order of trial Court set aside. 13. The deceased seems to be hypersensitive and is unable to bear the discord and the petulance. The deceased could have lodged a report against the petitioner. If the police declined to lodge the report, she could have moved higher officer. But instead of taking this legitimate action, she decided to take an escapist course of committing suicide to revenge her tormentor. In the present case, there is no prima facie evidence that the petitioner/accused 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. Therefore, abetment cannot be inferred against the petitioner. 14. In the case of Satish Mehra v. State of NCT of Delhi [ AIR 2013 SC 506 ], the apex Court has held that “Criminal Proceeding Code (2 of 1974), section 482- Quashing of criminal proceedings- Power as to- Extraordinary in nature- Failure of allegations made to make out offence- Core basis on which power is recognized as inherent in High Court- Such power is exercisable at threshold as well as advanced stage of trial.” 15. Considering the above power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in the High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose triable offence, there can be no reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not get protracted. 16. 16. Therefore, this Court is of the opinion that offence under section 306 of the IPC is not made out for there is no mens rea, hence, the order impugned dated 10.11.2017 passed by the Sessions Judge, Hoshangabad in S.T. No. 142/2017 is set aside. This revision is allowed. The petitioner is discharged from the offence under section 306 of the IPC. P. S. Tomar for petitioner; Ms. Shahin Fatima, Government Advocate for respondent/State.