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Himachal Pradesh High Court · body

2018 DIGILAW 886 (HP)

Pradeep Kumar v. State of H. P.

2018-05-14

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant criminal revision stands directed, against, the orders recorded on 17.03.2016, by the learned Sessions Judge, Solan, camp at Nalagarh in Case No.7 NL/7 of 2013, whereunder, he discharged the accused vis-a-vis the offences constituted under Section 306 read with Section 34 of the IPC. 2. The learned counsel appearing, for, the petitioner has with much fervor and vehemence, hence, argued before this Court, that the impugned order, is, wanting in legal vigour, (a) especially when the material existing, on record, does prima facie, make, displays of offences being committed, by the accused under Section 306 read with Section 34 IPC, (b) thereupon, rather the learned Sessions Judge concerned, was enjoined to frame, charges, against the accused, under, the aforesaid penal provisions, rather than to discharge them. The learned counsel appearing for the petitioner, has, in support of his submissions, hence, has placed reliance, upon, certain material existing, on record, material whereof, is, comprised in a suicide note, suicide note whereof stands opined by the FSL concerned, to be authored, by the deceased, contents whereof reads as under : “(1) Vipal Vohar, Kaml Chandel, G.M. Sahab, Harender, merit maut ka karan hai, jisme meri koi galati nahi hai. (2) Gain Singh, Vishavnath ka jhagra hua koi action nahi liya Kamal Chandel ne. (3) G.M. Sahab aur Susheel Ka Jhagra hua to koi action nhi liya. (4) Harender ka jhagra hua mere sath hus to turant ation liye, H.R. department apne bandi ka paksh lete hai.”. therein revelations occur (a) of one Vipual Vohar, Kamal Chandel, G.M., and, one Harender, hence, instigating the deceased, to commit suicide; (b) on a scuffle occurring inter se Gain Singh, and, one Vishavnath, no action being taken, by one Kamal Chandel, (c) and, on a scuffle, occurring, inter se G.M., and, one Susheel, also no action being taken, (d) whereas, in a scuffle, ensuing inter se the deceased, and, one Harender, prompt action being taken, against both, by the apt accused. (e) with Vishavnath in his statement recorded under Section 161, of, the Cr.P.C., rendering corroboration thereto, and, also the brother of the deceased, in his statement recorded under Section 161, Cr.P.C. meteing corroboration thereto, (f) thereupon, immense vigour, being acquired by the suicide note, and, hence the learned Sessions Judge concerned, was enjoined to charge the accused, for the offences committed, under Section 306 read with Section 34 of the IPC. 3. For determining, the vigour of the aforesaid contention, addressed before this Court, by the learned counsel appearing for the petitioner, it is imperative to bear in mind, the provisions borne in Section 107, of, the IPC, provisions whereof stand extracted hereinafter :- “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.” and upon prima facie satiation thereof hence emerging, thereupon, this court, would be constrained, to, reverse the orders pronounced, by the learned Sessions Judge concerned. The intricate besides the gravest nuance, borne in the afore extracted provisions, occurring in Section 107 of the IPC, and, meteings, of, satiations vis-a-vis ingredients thereof, importantly by the afore referred material, is also imperative, is of, (a) the mens rea of the accused, to actuate or prompt, the deceased to commit suicide, (b) intentional aiding, by any act or illegal omissions by each of the accused, in the act, of, the deceased, hence, committing suicide. 4. 4. Now at, bearing in mind, the innate subtle nuance, of, the afore extracted provisions occurring in Section 107 of the IPC, and, blending them vis-a-vis the contents, of, the suicide note, (a) wherein incriminatory ascriptions are made by the deceased vis-a-vis the accused, comprised, in the accused, taking prompt action against him, and, one Harender, upon a scuffle occurring inter se him and the latter, (b) whereas, theirs omitting to take an alike action against other employees, cannot per se rear any inference of, (c) thereupon, the accused/employers, of, the deceased carrying in their respective minds, the imperative peremptory mens rea, of, hence theirs goading and prompting or instigating the deceased, to commit suicide, (d) nor also it can be said that the disciplinary action visited, by the accused, upon, one Harender, and, upon the deceased, (d) and, the omissions on the part of the employers, to not visit, any, alike action, upon other derelicting employees also constituting or holding there within elements, of, theirs intentionally aiding by any purported willful commissions or omissions, in hence, the deceased, rather committing suicide nor it can be held, of, theirs purportedly instigating the deceased to commit suicide. Even though, the suicide note, is, prepared in proximity to the deceased committing suicide, and, hence the imperative principle of proximity inter se its preparation, and, the ultimate act, of the deceased hence committing suicide, is, thereupon satiated, (e) yet in garb of the suicide note, importantly, when the peremptory ingredients aforesaid, for enabling criminal inculpations, of, the accused vis-a-vis the commission of suicide, by the deceased, remains, rather grossly unsatiated by the apt suicide note, hence no firm inference qua prima facie, the order impugned, warranting reversal can be hence erected, (f) rather it appears, of, the deceased therein only ventilating, grievances, against, the disciplinary authority concerned. Even though, any disciplinary measures initiated by the disciplinary authority concerned vis-a-vis the delinquent employees, (g) may, when is accompanied by prima facie, gross entrenched malafides on the part of the employers, besides is entwined with vices of intentional harassment, and, maltreatment, of, the deceased/errant official, concomitantly, thereupon, may grip, the disciplinary action initiated, against the employee, by the disciplinary authority, to be vitiated, (h) also hence an inference would spur, of its initiation, carrying the requisite mens rea, of, hence it being intentional also it fostering, the deceased, to, commit suicide. However, hereat, there is no material placed, on record, (i) qua in the visiting, of, disciplinary measures, against, the deceased, by the disciplinary authority, it carrying, any element, of, it being prima facie gripped with entrenched intentional malafides or malice, and, only, for perpetuation, of, harassment and ill-treatment upon him, (ii) or its initiation being spurred, for ensuring, despite no material existing on record, in personification, of, his proven derelictions, hence, his victimization, or wreaking founded vendetta upon the deceased. In absence of the aforesaid material, it appears, of the disciplinary measures, visited, upon the deceased, by his employer being founded, upon, sound and tangible material, and, hence being free, from, any traits of intentional apt mens rea, (ii) more so, when one Vishavnath, in his statement recorded under Section 161 of the Cr.P.C., metes corroboration thereto. Since, Harender also was meted punishment alike the one meted to the deceased, whereas, apparently with Harender rather not taking, the ultimate step of his committing suicide, whereas, rather only, the deceased taking the ultimate step, of committing suicide, and, with Harender also being arrayed as an accused, (iii) whereas, upon a reading of the aforesaid statement, the aforesaid Harender along with the deceased, was, equally responsible, for, the scuffle which ensued inter se them, (iv) thereupon for the proven misdemeanor, committed by the deceased, in respect whereof, he was meted a minimal punishment, it appears rather that, he has taken the ultimate step, of his committing suicide, commission, of, suicide whereof, by him, appears to be a step in dis-concurrence with the proven misdemeanor, and, also is disproportionate vis-a-vis the minimal punishment meted upon him. The effect, of Harender, not taking the ultimate step to commit suicide, whereas, he alike the deceased, was meted an alike punishment, also reiteratedly hence begets an inference, qua the legality of the disciplinary action visited, upon, both by the disciplinary authority, besides eliminates any inference, of, any rearings of any disciplinary measures, vis-a-vis both, rather carrying entrenched vices, of, victimization or vendetta, reared against both, by the employer nor the visiting of disciplinary action, by the disciplinary authority, upon, both is gripped, with the apt incriminatory mens rea, nor thereupon, any intentional actuatory instigation, stood, purveyed to the deceased. 5. 5. Even though, the brother of the deceased, has, in his statement recorded under Section 161 of the Cr.P.C., hence has made echoings, therein, of given the perenniality, of, perpetration, of maltreatment or ill-treatment, upon the deceased by the latter's employer, hence, carrying a traumatic effect on his psyche, hence, leading him to commit suicide. However, the statement of the brother, of, the accused, is recorded, with a year elapsing, since, the deceased committing suicide, thereupon, the belated recording of the statement, of, the brother of the deceased, hence engenders an inference of it, hence, carrying stains of invention or concoction, rendering it to be unbelieveable, (i) and even otherwise, with, the suicide note authored, by the deceased rather holding proximity, with the commission, of, suicide by the deceased, thereupon, with its holding a degree, of, purported evidentiary worth higher vis-a-vis, the evidentiary worth, of, the belatedly recorded, statement of the brother of deceased, (ii) AND with this Court, negating the effect of the suicide note, thereupon, also the statement of the brother of the deceased, is ridden of its apt evidentiary worth, if any. 6. The aforesaid inference, derived, by this Court marshals immense strength, and, vigour from a judgment, of the Hon'ble Apex Court, rendered, in a case titled as State of Kerala and others vs. Unnikrishnan Nair and others, reported in (2015)9 SCC 629 , the relevant paragraph No.9 to 17 whereof are extracted hereinafter :- “9. To appreciate the rivalised submissions in the obtaining factual matrix, it is necessary to understand the concept of abatement as enshrined in Section 107 IPC. The said provision reads as follows :- “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. Explanation 1. – A person who, by wilful misrepresentation, or by wilful 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 wilful misrepresentation, or by wilful 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 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. The aforesaid provision was interpreted in Kishori Lal v. State of M.P., (2007)10 SCC 797 , by a two-Judge Bench and the discussion therein is to the following effect:- (SCC p.799, para 6) “Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. “Abetted” in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.” 11. In Analendu Pal Alis Jhantu v. State of West Bengal, (2005)2 SCC 659 dealing with expression of abetment the Court observed :- “The expression “abetment” has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.” 12. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate. 13. In Netai Dutta (supra), a two-Judge Bench, while dealing with the concept of abetment under Section 107 I.P.C. and, especially, in the context of suicide note, had to say this: (SCC p.661, paras 6-7) “6. He has also made the allegation against the Advocate. 13. In Netai Dutta (supra), a two-Judge Bench, while dealing with the concept of abetment under Section 107 I.P.C. and, especially, in the context of suicide note, had to say this: (SCC p.661, paras 6-7) “6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag. 7. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal.” 14. In M. Mohan (supra), (2011)3 SCC 626 , while dealing with the abatement, the Court has observed thus: (SCC p.638, paras 44-45) “44. 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. 45. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. 45. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.” 15. As far as Praveen Pradhan (supra), (2012)9 SCC 734 , is concerned, Mr. Rao, has emphatically relied on it for the purpose that the Court had declined to quash the F.I.R. as there was a suicide note. Mr. Rao has drawn out attention to paragraph 10 of the judgment, wherein the suicide note has been reproduced. The Court in the said case has referred to certain authorities with regard to Section 107 I.P.C. and opined as under: (SCC p.741, paras 18-19) “18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 Cr.P.C. 19. Thus, the case is required to be considered in the light of aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. Thus, the case is required to be considered in the light of aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the appellant, upon non-fulfillment of which, he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for a long durations in the factory, vis-à-vis other employees which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, “had there been any other person in his place, he would have certainly committed suicide” is what makes the present case distinct from the aforementioned cases considering the facts and circumstances of the present case, we do not think it is a case which requires any interference by this court as regards the impugned judgment and order of the High Court.” 16. We have quoted in extenso from the said judgment and we have no hesitation in stating that the suicide note therein was quite different, and the Court did think it appropriate to quash the proceedings because of the tenor and nature of the suicide note. Thus, the said decision is distinguishable regard being had to the factual score exposited therein. 17. Coming to the case at hand, as we have stated earlier, the suicide note really does not state about any continuous conduct of harassment and, in any case, the facts and circumstances are quite different. In such a situation, we are disposed to think that the High Court is justified in quashing the proceeding, for it is an accepted position in law that where no prima facie case is made out against the accused, then the High Court is obliged in law to exercise the jurisdiction under Section 482 of the Code and quash the proceedings. [See V.P. Shrivastava v. Indian Explosives Limited and Others]. 18. Before parting with the case, we are impelled to say something. [See V.P. Shrivastava v. Indian Explosives Limited and Others]. 18. Before parting with the case, we are impelled to say something. Mr. Bhushan, learned counsel appearing for the respondent No. 1 & 2 has drawn our attention to a facet of earlier judgment of the High Court wherein it has been mentioned that at one time the deceased was pressurised by some superior officers. We have independently considered the material brought on record and arrived at our conclusion. But, regard being had to the suicide note and other concomitant facts that have been unfurled, we are compelled to recapitulate the saying that suicide reflects a “species of fear”. It is a sense of defeat that corrodes the inner soul and destroys the will power and forces one to abandon one’s own responsibility. To think of self-annihilation because of something which is disagreeable or intolerable or unbearable, especially in a situation where one is required to perform public duty, has to be regarded as a non-valiant attitude that is scared of the immediate calamity or self-perceived consequence. We may hasten to add that our submission has nothing to do when a case under Section 306 IPC is registered in aid of Section 113A of the Evidence Act, 1872. 19. In the result, we do not perceive any merit in the appeal and the same stands dismissed accordingly.” Furthermore the aforesaid inference also gathered strength, from, a pronouncement recorded, by the Hon'ble Apex Court, in case titled as Netai Dutta vs. State of W.B., reported in (2005)2 SCC 659 . 7. For the reasons aforesaid, the material as discussed hereinabove, does not prima facie, withstand the test, of, the ingredients borne, in the apposite provisions borne in Section 107 of the IPC, thereupon, no prima facie case, is made out, against the accused, for the commission of offences, punishable under Section 306 of the IPC read with Section 34 IPC. Consequently, there is no merit in the instant petition and it is dismissed accordingly. In sequel, the impugned order is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.