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Madhya Pradesh High Court · body

2017 DIGILAW 1226 (MP)

Lalit Solanki v. State of M. P.

2017-12-01

VED PRAKASH SHARMA

body2017
ORDER 1. This revision petition preferred under section 397/401 of Code of Criminal Procedure, 1973 (for short 'the Code') calls in question the legality, propriety and correctness of order dated 8.11.2016 passed by 10th Additional Sessions Judge, Indore in Sessions Trial No. 558/2016, whereby the charge for offence under section 306 read with section 107 of the IPC has been framed against the petitioner. 2. The petitioner has been charge sheeted in connection with death of one Anjali, wife of Prakash, who consumed poisonous substance on 14th November, 2015 and died as a result thereof on 16th November, 2015. The prosecution case is that Anjali (deceased), who was acquainted with the petitioner, persuaded her sister to lend Rs.15,000/- to him. However, the petitioner neither returned the principal amount, nor the interest accrued thereon. Allegedly, when Anjali (deceased) threatened the petitioner, that in case, he fails to repay the money and interest, she will die, then the petitioner responded saying that he is not going to return the money even if she dies. 3. As per prosecution, dying declaration of the deceased was recorded by Executive Magistrate on 15.11.2015, in which the deceased has stated about the aforesaid factual position and has further stated that out of anger, she consumed poisonous substance to end her life. 4. It is submitted by the learned counsel for the petitioner that even if all the allegations made against the petitioner are accepted at its face value, still an offence under section 306 read with section 107 of IPC for abetment to commit suicide is not made out, prima-facie against the petitioner, because there is nothing to indicate that at any point of time, the petitioner has encouraged, instigated, incited, provoked or goaded the deceased to commit suicide. It is also submitted that as necessary ingredients to constitute offence under section 306 of IPC are totally missing, therefore, the impugned order, cannot be sustained. 5. Per Contra, it is submitted by the learned Public Prosecutor that the deceased was being constantly threatened by the petitioner and that he even went to the extent saying that he is not going to refund the money or the interest even if she dies, therefore, necessary ingredients to constitute offence under section 306 read with section 107 of IPC are made out, therefore this petition is liable to the dismissed. 6. 6. Heard the learned counsel for the parties and perused the record. 7. As regards offence under section 306 of IPC, we can usefully refer to the decision rendered by this Court in M.Cr.C No.1742/2016 (Bittu @ Girriraj v. State of M.P., Order dated 8.3.2017, Bench Indore), wherein the legal position has been considered in the light of various pronouncements of Hon’ble the apex Court; relevant paras whereof run as under : 9. 'Abetment to commit suicide' is an offence under section 306 of IPC punishable with imprisonment for a term which may extend to 10 years and fine. Expression ‘Abetment’ has been defined in section 107 of IPC which runs 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 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 facilitates the commission thereof, is said to aid the doing of that act" 10. In the State of Punjab v. Iqbal Singh, [ AIR 1991 SC 1532 ], the apex Court explaining the meaning and expanse of word ‘abetment’ as used in section 107 of IPC, has held as under : “Abetment” as defined by section 107 of the IPC comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of that thing, and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word “instigate” in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. The dictionary meaning of the word “aid” is to give assistance, help etc. 11. In Ramesh Kumar v. State of Chhatisgarh, 2001(2) BLJ=113 (2001)9 SCC 618 , a three Judge Bench of the apex Court explaining the meaning and connotation of word "instigation" has held as under (para. 20) : "20. 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. 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." 12. Taking note of the fact that each person's suicidability pattern is different from others and that each person has his own idea of self-esteem and self-respect, the apex Court in M. Mohan v. State, Represented by the Deputy Superintendent of Police, 2011 CRI.L.J. 1900 (S.C.), referring to its earlier decision in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), 2009(16) 605, held that to constitute abetment, there should be intention to provoke, incite or encourage the doing of an act by the accused. 13. Reference can also be made to the decision of the apex Court in Gangula Mohan Reddy v. State of Andhra Pradesh, 2010 (Suppl.) CrLR (SC) 261, wherein the allegation was that the deceased was beaten by the accused and was also subjected to harassment, due to which he committed suicide by consuming poisonous substance. The apex Court referring to its earlier decisions in Mahendra Singh and another v. State of M.P., (1995) Supp. The apex Court referring to its earlier decisions in Mahendra Singh and another v. State of M.P., (1995) Supp. 3 SCC 731 and Ramesh Kumar v. State of Chhatisgarh, (2001)9 SCC 618 , holding that offence of abetment to commit suicide under section 306 of IPC is not made out, observed as under : “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”. 14. In Deepak v. State of M.P., 1994 Cr LJ 767 (M.P.), the deceased girl was threatened with defamation, if she refused to have sexual intercourse with two accused; within an hour she committed suicide leaving a suicidal note. Accepting the plea that the act of the accused might have been a reason for committing suicide but the same did not constitute abatement within the meaning of section 306 read with section 107 of the IPC, it was held that -- “neither there was any intention nor any positive act on the part of the accused to instigate her or aid her in committing suicide. The two accused persons, therefore, cannot be held guilty of the offence under section 306 of the IPC and their conviction on that count by the trial Court, is liable to be set aside.” 15. In the case of Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh,[ 2002(2) JLJ 275 = AIR 2002 SC 1998 ], the accused was charged under section 306 of IPC for abetting his brother-in-law to commit suicide; the accused allegedly said to him to 'go and die'; the deceased left behind a suicide note stating that accused is responsible for his death. It was held that words “go and die” do not constitute instigation for mens rea of offence under section 307 of IPC. 16. In Mahendra Singh and another v. State of M.P., 1996 CrLJ 894 =1995 Supp(3) SCC 731, a case prior to the insertion of section 113 A in the Evidence Act, the charge under section 306 IPC proceeded on the basis of dying declaration of the deceased to the effect that “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. 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 these reasons and being harassed I want to die by burning.” Considering legal sustainability of the samethe apex Court held as under : “Abetment has been defined in section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased.” 17. From the aforesaid pronouncements of the apex Court, it flows that to constitute abetment to commit suicide, there must be material, prima-facie, indicating that accused with a positive act on his part instigated, incited, aided or provoked the person to commit suicide. 18. In Devendra and others v. State of Uttar Pradesh and another, (2009)7 SCC 495 , it has been held as under : “when the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior Courts would not encourage harassment of a person in a criminal Court for nothing.” 8. Examined in the light of the aforesaid legal position, it is clear that the petitioner, at no point of time has encouraged, instigated, provoked, incited, suggested or goaded the deceased to commit suicide, therefore, even, prima-facie, necessary ingredients to constitute offence under section 306 read with section 107 of IPC are not made out in the case. 9. The learned trial Court, while framing charge has not adverted to aforesaid factual and legal aspects of the case and has mechanically framed charge against the petitioner. Therefore, the charge under section 107 read with section 306 of the IPC against the petitioners cannot be sustained. 10. Accordingly, this petition deserves to be and is hereby allowed and the charge with regard to offence under section 306 read with section 107 of the IPC against the petitioner is hereby quashed.