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Madhya Pradesh High Court · body

2018 DIGILAW 780 (MP)

Manish Dubey v. State of M. P.

2018-09-07

SUSHIL KUMAR PALO

body2018
ORDER 1. Heard both the parties finally at the motion stage. 2. The petitioner has preferred this revision under section 397 r/w section 401 of the CrPC, challenging order dated 26.9.2017, passed by the Eighth Additional Sessions Judge, Jabalpur in S.T. No. 430/2017, wherein charges have been framed against the petitioner for offence under section 306 of the IPC. 3. Bereft of the unnecessary details, the facts requisite for disposal of this petition are that Amit @ Ambe Chourasiya committed suicide on 1.3.2017 at about 1:30 pm. His post-mortem report reveals that he died due to asphyxia as a result of ante-mortem hanging. He left a suicide note in which he has alleged that he is committing suicide due to compulsion. He had obtained loan from the accused persons namely, Manish Dubey, Kanti Sonkar, Akash Gupta, Golu Sonkar and Laxmi @ Neetu RÁwani. Because of their harassment for non-payment of loan, the deceased Amit @ Ambe hanged himself and committed suicide. 4. After the report at Police Station Omti, Jabalpur, investigation was made and charge-sheet has been filed against the petitioner and other accused persons for offence under section 306 of the IPC r/w section 3 of the Rin Sarankshan Adhiniyam, 1939. 5. On perusal of the police diary, it is found that the deceased died due to ante-mortem hanging. The witnesses reveal that the deceased was harassed for non-payment of the loan amount by the accused persons, culminated into the commission of suicide. 5. On perusal of the police diary, it is found that the deceased died due to ante-mortem hanging. The witnesses reveal that the deceased was harassed for non-payment of the loan amount by the accused persons, culminated into the commission of suicide. The suicide note left by the deceased reads as under : ^^vkSj ckck iku okyk esa nqdku [kqyh uk dkj.k dkyh dkj.kksa ds dsgrk gSa jksrs gq, vkiuh tku ns jgk gwa t; ekrk nh esa vkius ikik ekEeh dks vkSj 2 HkkbZ vkSj eka tSlh Hkkoh dks okgqr pkgrk gwa vki yks yksx jksuk ekr esjh dkle gS vEcs esa , [kkr ,eŒihŒ Fkkuk vkserh ds uke yh[k jkgk gw esa cgqr gh ektcwjh esa vkiuh tku ns jgk gwa esa vkiuh tku nsuk ukgh pkgrk ij ektcwjh esa ns jkgk gaw eq>s dkjts okys ijs'k dkjrs gS vkSj eq>s tku ls ekjus dh nke nsrs gS dqN lke; igys eSaus bu ls dkjt yh;k Fkk bZu yksxks ds uke gS ¼ekuh'k nqcs½ vk/kkjrky ¼uhrq vkuaVh½ ¼dhjkrh lksudj½ Hkjrhiqj ¼vkdk'k pkj½ bZu yksx eq>s ikjs'kku dkjrs gS esa Fkkuk vkserh i'ku ls vkihy dkjrk gaw dh esjs ekjus ds ckn dkjt ckys esjs eka cki dks ijs'k uk dkjs ¼vkSj esa vkius ikfjokj okys ls , ÁFkuk dkjrk gaw ekS cki dk /kku jk[kks½A^^ 6. On behalf of the petitioner, it is submitted that the petitioner has been falsely implicated. There is no prima facie evidence against the petitioner to constitute offence under section 306 of the IPC because the demand of interest on the borrowed amount does not constitute abetment to commit suicide. The ingredients of section 107 of the CrPC is completely missing. It is also contended that the money advanced towards loan was demanded and the interest of the loan demanded can never be considered or termed as “abetment to commit suicide.” 7. On behalf of the respondent-State the application is vehemently and it is contended that the deceased was running a tea stall and the accused persons were harassing him. They were taking away money everyday which he earned. Because of which the deceased left with no other option except to commit suicide. 8. The entire evidence, if taken as it is, discloses that the deceased committed suicide because of the demand of interest of the loan amount by the accused persons including the petitioner. 9. They were taking away money everyday which he earned. Because of which the deceased left with no other option except to commit suicide. 8. The entire evidence, if taken as it is, discloses that the deceased committed suicide because of the demand of interest of the loan amount by the accused persons including the petitioner. 9. There is no averment in the statements or in the FIR that the deceased was, in any way, harassed by the accused persons. For the better understanding of the provisions, section 306 of the IPC is reproduced, which is as follows : “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.” 10. It is also necessary to understand what actual constitute “abetment.” “Abetment” has been defined under section 107 of the IPC, which reads as follows : “107. Abetment of a thing:- A person abets the doing of a thing, whoFirst- 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 facilitate the commission thereof, is said to aid the doing that act.” 11. 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.” 11. In the case of Radheshyam v. State of M.P., 2014(II) MPWN 106 =2014 (3) MPHT 103 this Court has also opined that : “Criminal Procedure Code, 1973, section 397/401 Order of framing charge under section, 306, IPC- No evidence of abetment to commit suicide- Money borrowed to the deceased and demanding back of money was not an act of harassment- Demand of loan amount is not an abetment under section 107, IPCWords uttered in heat of moment does not amount to abetment- Held- Order of framing charge is not sustainable and set aside.” So far as the deceased and the petitioner are concerned, there was money transaction and there could have been dishonesty by the accused persons but the same cannot be termed as “abetment to commit suicide.” 12. In Ramchandra v. State of M.P., [ 2009 (2) MPLJ 147 ], the deceased committed suicide on account of playing dishonesty in a transaction of loan by the petitioner. The act as alleged against the petitioner does not amount to instigation nor constitutes aid in commission of the suicide by the deceased. Order framing charge against the petitioner for offence under section 306/34, IPC was set aside. 13. In the case of Netai Dutta v. State of West Bengal, [2005 CRI.L.J. 1737], Hon'ble the apex Court has held that : “(A) Penal Code (45 of 1860) Ss. 107, 306- Abetment of suicide- No averment is alleged suicide note that accused had caused any harm to deceased or was in any way responsible for delay in paying salary to him- No reference of any act or incidence in alleged suicide note whereby accused has committed any wilfull act or omission or intentionally aided or instigated deceased in committing act of suicide- It cannot be said that accused had in any way instigated deceased to commit suicide or he was responsible for suicide of deceased.” 14. In the case of Laxmi Prasad Vishwakarma v. State of M.P., [ 2003 (I) MPWN] 73 and Devendra Singh v. State of M.P., [ 2007 (III) MPWN 95 ], similar matter was considered and categorically held that borrower saying to the creditor that he may commit suicide does not amount to instigation. Any conversation between borrower and creditor does not amount to abetment to commit suicide. In the circumstances, accused persons if at all exchanged any dialogue for demanding back their money does not constitute the offence of instigation or abetment to commit suicide. 15. Even if the deceased was in any manner threatened or harassed, he could have lodged the report against the petitioner and without lodging a report he has taken a drastic step of committing suicide to punish his tormentors in his own way. This cannot be termed as “abetment to commit suicide.” Following the law laid down in the case of Ram Naresh and Another v. State of M.P. and others [ 2002 (2) MPHT 183 ], this Court is also of the opinion that the report against the accused persons for alleged torture and threat to kill the deceased may constitute other offences but it may not be offence under section 306 of the IPC. The deceased could have moved to the police or higher officials instead of taking his legal and legitimate action as the deceased adopted an escapist course of committing suicide in order to take revenge from his alleged tormentors. No case for alleged commission of the offence is made out against the petitioner. 16. That being so, this petition is allowed. The petitioner is discharged from offence under section 306 of the IPC. 17. Before parting with the case, it is observed that the prosecution is free or at liberty to prosecute the petitioner for other offences, including the offence under section 3 of the Rin Sanrakshan Adhiniyam, 1939, if deem fit.