Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 902 (JK)

State of J&K v. Ajit Singh

2018-11-22

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. This criminal revision petition has been filed by the State against the order dated 19.01.2009 passed by the 1st Additional Sessions Judge, Jammu by virtue of which the respondents herein have been discharged for the offences under Sections 306/406 RPC. 2. The brief facts of the case are that one Naveen Kumar Honda and Mst. Anu Bala came from Batala, Punjab and stayed at Broadway Hotel at Jammu in one room. On 19.07.2007 both of them consumed poisonous substance aluminum phosphide in the hotel room and committed suicide. The alleged suicide committed by these persons is attributed to the respondents, who hail from Batala and Amritsar respectively. The two suicide notes were recovered from the hotel room where the suicide was committed by the victims. These two suicide notes coupled with the statements of the witnesses are the mainstay of the prosecution case for implicating the accused under Sections 306/406 RPC. It has been projected in the challan that the business transaction between the accused and the victim-Naveen Kumar Honda and the harassment caused to the victim Mst. Anu Bala by the accused Suman Mohan Bazaz led to the suicide of the victims. 3. Learned counsel for the petitioner-State submits that the financial harassment caused by the accused to the victim Naveen Kumar Honda forced them to commit suicide in the hotel room. The suicide notes were recovered from the place of occurrence, prima facie, a case is made out that the accused are responsible for the suicide of the victims and are liable to be charged for offences under Sections 306/406 RPC. 4. The petitioner-State has challenged the impugned order dated 19.01.2009 on the following grounds: - (a)The order suffers from material illegality and irregularity in the manner that the Court at stage of framing of charges has appreciated the evidence collected during the investigation. The weight and relevance of suicide notes have been scrutinized. The respondents are named in the suicide notes as persons responsible to create the situation. There is enough material connecting the respondents to the commission of offences and sufficient to frame the charges. The Government has sanctioned the filing of the Criminal Revision vide No. 726-LD(ACQ) of 2009 dated 06.04.2009. 5. I have carefully gone through the grounds taken in the memo of revision petition and gave patient hearing to rival contentions. 6. There is enough material connecting the respondents to the commission of offences and sufficient to frame the charges. The Government has sanctioned the filing of the Criminal Revision vide No. 726-LD(ACQ) of 2009 dated 06.04.2009. 5. I have carefully gone through the grounds taken in the memo of revision petition and gave patient hearing to rival contentions. 6. In order to appreciate the contentions of the parties, it may be noted that sections 268 and 269 of Cr.P.C. relate to the trial of cases before the Court of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote sections 268 and 269 of Cr.P.C. as under:- “268 Discharges: If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceedings against the accused , he shall discharge the accused and record his reasons for so doing. 269 Framing of Charge: (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which – (a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on police report, (b) is exclusively triable by the Court , he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 7. (2) Where the Judge frames any charge under clause (b) of sub section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 7. A conjoint reading of sections 268 and 269 of Cr.P.C. reveals that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused or transfer the case to CJM or Judicial Magistrate, if he is of the opinion that offence made out against the accused is triable by Magistrate. 8. In case Union of India Vs. Prafulla Kumar Samal reported in 1979 (Cri) 609, in which after adverting to various decisions, the Hon’ble Supreme Court has enumerated the following principles:- “(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before this Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code of the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and son on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 9. In Dilawar Balu Kurane V. State of Maharashtra (2002 SCC (Cri) 310), the above principles enunciated in Prafulla Kumar Samal’s case (Supra) were reiterated. It was observed thus:- “While exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted powers to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. It was further held hat by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused. However, their Lordship has held that the Judge would not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 10. However, their Lordship has held that the Judge would not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 10. In a recent judgment in case Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 3 SCC (Cri) 1371, the Apex Court on considering its previous judgments rendered on the point , has laid down the following principles to be followed while considering the prosecution case for charge:- (i) The Judge while considering the question of framing the charges under section 227 Cr.P.C has the undoubted power to sift and weigh the evidence 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 prima facie case would depend upon the facts of each case. (ii) Where the material placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 11. The relevant extract of order of discharge of court below reads as under:- “The accused facilitated the suicide of the alleged victim is not made out as the alleged acts of the accused did not remotely intend to aid the suicide of the victim Naveen Honda. So far as the victim Annu Bala is concerned the case set up against the accused is more fragile and stands on a weak wicket. The letter of this victim speaks more of her commitment to the other victim in his intended act of committing suicide than anything else. The accused Ajit Singh was stated to be making the life miserable of the victim-lady but holds both the accused responsible for her suicide. The imputation is as vague as it could be. Complicity of the person in the crime starts as soon as the act of the victim can be attributed to the intentional instigation and deliberate act of the accused to stir up the victim to do that act which he would not have ventured to do otherwise. Instigation or conspiracy are deliberately found wanting on the part of the accused for the act of the suicide of the victim Annu Bala. Instigation or conspiracy are deliberately found wanting on the part of the accused for the act of the suicide of the victim Annu Bala. The notes are undated and it cannot be inferred if those are inked at Jammu or at some other place. The manner in which suicide came to be committed by the victims confirms about the non-proximity of suicide with the allegations leveled in the notes against the accused. The victims come together from Punjab and stay together in the Broadway Hotel and later on commit suicide in the room. The victims bundle themselves together in a single room where bottle of wine is also found and then commit the act leaves the court wondering what made to bring them to Jammu from Punjab. One is not required to shift the place to commit suicide. The Court is unable to convince itself that even the shred of evidence is conspicuous by its absence to link the accused persons with the commission of offence under Section 306 RPC. So far as offence under Section 406 RPC is concerned the evidence is bereft of the very ingredients of section 405 RPC. No property is entrusted to the accused by Naveen Handa which the accused can be said to have misappropriated or misused. Taken the allegations to be true for the sake of argument, at the most, the victim was entitled to some amount from the accused and that is all that can be fathomed from the challan and nothing more is required to be read into it against the accused. The accused are discharged for the offences under section 306/406 RPC in which the challan came to be filed. The file to be sent to records after compilation.” 12. In present case, challan has been produced u/s 306/406 RPC for abetment of suicide. Section 306 RPC reads 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.” 13. Abetment has been defined under section 107 of RPC. Section 306 RPC reads 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.” 13. Abetment has been defined under section 107 of RPC. Section 107 RPC reads as under:- “107.Abetment of a thing; A person abets the doing a thing, who- Firstly- 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.” 14. A conjoint reading of both sections, it comes that accused should have done some active suggestion or support to the commission of offence. The word instigates literally means to urge, forward, provoke, incite or encourage doing an act and a person is said to instigate another, when he actively suggest or stimulate him to act by any means. Legality of Section 306 RPC is dependent upon the act of abetment for commission of the suicide. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to commission of suicide. 15. From bare perusal of impugned order of discharge, it is evident that court below has categorically held that commercial transaction which the victim Naveen Kumar Honda has with accused Suman Mohan Bazaz, cannot be said to be related to suicide; that there is no clarity of the grievance which deceased has with accused. It has further been held by court below that accused Ajit Singh owed Rs.36,000/- to victim as per letter and only on this count accused cannot be prosecuted for abetment to suicide. As per court below, Victim Anu Bala, suicide letter is more fragile, because she has stated that accused Ajit Singh has made her life miserable but she holds both accused responsible. As per court below, Victim Anu Bala, suicide letter is more fragile, because she has stated that accused Ajit Singh has made her life miserable but she holds both accused responsible. Court below has further relied on fact collected during investigation that both victims stayed together in one room in the hotel and a wine bottle was found. 16. Even from going through suicide notes and also the statements of the witnesses, no offence can be said to be made out against accused. Merely because the deceased have committed suicide, it does not mean to say that the accused persons have intended any commission of such suicide by the deceased. If there is no intention on the part of the accused, whatever may be the purpose if suicide occurs, it cannot be tagged to the act of the accused persons. 17. The Rajasthan High Court in a decision reported in 1995 CrLJ 3066 (Raj) in the case of Manish Kumar Sharma vs. State, has also observed that; "The accused in a case had given some money on loan to the deceased lady and while demanding back the money the accused used filthy words and the lady due to great mental distress committed suicide. The Court held that the accused could not be held guilty of abetment to suicide." 18. While applying the above principles of laws, the facts/evidence collected during investigation by police, do not form grave suspicion that petitioners were involved in commission of crime. The order of court below does not suffer from any infirmity of law and facts. Under such circumstances, it is ridiculous to say that the accused persons have to undergo an ordeal of trial. Hence, this revision petition preferred by the State is liable to be dismissed. 19. Accordingly, the revision petition is dismissed.