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2019 DIGILAW 1783 (ALL)

Amit Kumar v. State of Uttar Pradesh

2019-07-25

PRITINKER DIWAKER

body2019
JUDGMENT : Pritinker Diwaker, J. 1. Heard Sri Shobh Nath Pandey, learned counsel for the revisionist and Ms Parul Kant, learned counsel for the State. None for respondent no.2 though served. 2. Revision is formally admitted for hearing and, with the consent of parties, heard finally. 3. Challenge in the instant revision is to the order dated 9.6.2017 passed by the learned Additional Sessions Judge, Faizabad in Sessions Trial No.257 of 2016, whereby the court below has rejected the application as filed by the revisionist-Amit Kumar under Section 227 of Cr PC, seeking discharge. 4. Brief facts of the present case are that on 24.1.2016, FIR was lodged by Smt. Sunita Devi, mother of deceased Priyanka, alleging in it that on 20.1.2016, her daughter had gone somewhere and returned at 5:00 am on 21.1.2016. When she asked her daughter as to from where she is coming, her daughter informed that throughout the night she was with revisionist Amit Kumar, son of Arjun Yadav (co-accused). She further informed her that she loves Amit Kumar and wants to marry him. Smt. Sunita Devi disclosed this fact to her mother-in-law Smt. Prema Devi and told her daughter that this is not good. FIR further states that Smt. Sunita Devi called Arjun Yadav, father of the revisionist (co-accused) and informed him about the affair between the revisionist and deceased Priyanka. In reply, it was told by Arjun Yadav that as long as he is alive, revisionist and Priyanka cannot marry. She states that saying this, co-accused Arjun Yadav had left her house and upon hearing his reply, at about 9:00 am, deceased Priyanka bolted herself inside the room and set herself on fire. Efforts were made to open the door which was ultimately broken and then dead body of the deceased was found. Based on this FIR, offence under Sections 306 and 506 of IPC was registered against revisionist-Amit Kumar and his father Arjun Yadav (co-accused). 5. Diary statements of Smt. Sunita Devi, Smt. Prema Devi, Smt. Rita Devi and Smt. Amrawati Devi were recorded and all of them have stated almost the same version as has been made in the FIR. 6. On 9.11.2016, revisionist-Amit Kumar filed an application (Annexure-4) under Section 227 of Cr PC, seeking discharge. 5. Diary statements of Smt. Sunita Devi, Smt. Prema Devi, Smt. Rita Devi and Smt. Amrawati Devi were recorded and all of them have stated almost the same version as has been made in the FIR. 6. On 9.11.2016, revisionist-Amit Kumar filed an application (Annexure-4) under Section 227 of Cr PC, seeking discharge. In this application, it has been submitted by the revisionist that even if the entire prosecution case is taken as it is, considering the FIR and the statements of various witnesses recorded under Section 161 of Cr PC, no case whatsoever is made out against him and, therefore, he be discharged from the alleged offence. 7. By the impugned order, the trial Judge has rejected the said application holding that merit of the case cannot be discussed at this stage. Hence, this revision. 8. Counsel for the revisionist submits: (i) that the court below has erred in law in passing the impugned order; (ii) that even if the entire prosecution case is taken as it is, offence under Sections 306 and 506 of IPC is not made out against the revisionist. (iii) that mere fact that the revisionist was having affair with the deceased does not constitute any offence especially when no role of instigation or abetment has been assigned to him; (iv) that learned trial Judge has rejected the application of the revisionist in a mechanical manner without applying correct principle of law. 9. On the other hand, supporting the order impugned, it has been argued by learned State Counsel that the order impugned is in accordance with law and there is no infirmity in the same. 10. Before I proceed further, it would be appropriate to consider the definition of Section 306 of IPC, which 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." 11. 'Abetment' has been defined in Section 107 of Chapter V of IPC and the same 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. 'Abetment' has been defined in Section 107 of Chapter V of IPC and the same 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 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 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 of that act." 12. Considering the above definitions in the case of Sanju Alias Sanjay Singh Sengar v. State of Madhya Pradesh, 2002 5 SCC 371 while considering the quashment of FIR, it has been held by the Apex Court: 6.Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he 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. 7.Before we advert further, at this stage we may notice a few decisions of this Court, relevant for the purpose of disposal of this case. 8.In Swamy Prahaladdas v. State of MP, 1995 Supp3 SCC 438, the appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked the deceased "to go and die" . 8.In Swamy Prahaladdas v. State of MP, 1995 Supp3 SCC 438, the appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked the deceased "to go and die" . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide. 9.In Mahendra Singh v. State of MP, 1995 Supp3 SCC 731, the appellant was charged for an offence under Section 306 IPC basically based upon the dying declaration of the deceased, which reads as under: (SCC p. 731, para 1) "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. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning." 10.This Court, considering the definition of 'abetment' under Section 107 IPC, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment of the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased. 11.In Ramesh Kumar v. State of Chhattisgarh, 2001 9 SCC 618 , this Court while considering the charge framed and the conviction for an offence under Section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set herself on fire. Acquitting the accused this Court said: (SCC p. 620) "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Acquitting the accused this Court said: (SCC p. 620) "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty." 12.Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25-7-1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased "to go and die". For this, courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr PC when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr PC is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him "to go and die". Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-7-1998 ensued by a quarrel. The deceased was found hanging on 27-7-1998. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-7-1998 ensued by a quarrel. The deceased was found hanging on 27-7-1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25-7-1998 drove the deceased to commit suicide. Suicide by the deceased on 27-7-1998 is not proximate to the abusive language uttered by the appellant on 25-7-1998. The fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25-7-1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below." 13. Further, in the case of Netai Dutta v. State of WB, 2005 2 SCC 659 it has been held by the Apex Court: 5. There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the work place. But, it may also be noticed that the deceased after his transfer in 1999 had never joined the office at 160 B.L. Saha Road, Kolkata and had absented himself for a period of two years and that the suicide took place on 16.2.2001. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide of Pranab Kumar Nag. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of the "abetment" have been stated in Section 107 of the Indian Penal Code. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of the "abetment" have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission. The explanation to Section 107 says that any wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose, may also come within the contours of "abetment". 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. 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. If above proposition of law is applied in the present case, what emerges is that the revisionist and the deceased were having affair and a night prior to the incident, the deceased was with the revisionist. In the morning when she returned, she informed her mother that throughout the night she was with the revisionist and that she loves him and wants to marry him. Upon hearing this, father of the revisionist, Arjun Yadav (co-accused) was called, who disclosed that as long as he is alive, he would not permit the revisionist and the deceased to marry. Thereafter, out of anger and frustration, deceased entered her room and committed suicide by setting herself on fire. This is not only the case of prosecution as per FIR, but also as per the statements of witnesses recorded under Section 161 of Cr PC. None of the witnesses has assigned any role of instigation or abetment to the revisionist, nor co-accused has stated anything against him. At no stretch of imagination, involvement of the revisionist in commission of offence has been proved by the prosecution. Even if the entire case of the prosecution is taken as it is, offence under Section 306 of IPC is not made out against the revisionist as basic ingredients of Section 107 of IPC are completely missing. Allowing the court below to frame charge against the revisionist and to go with trial would simply be a futile exercise and cannot be permitted to do so. The trial Court has erred in law in rejecting the application as filed by the revisionist under Section 227 of Cr PC, seeking discharge. 15. For the foregoing reasons, the order impugned is set aside. Application filed by the revisionist under Section 227 of Cr PC, seeking discharge, is allowed and revisionist-Amit Kumar is discharged from the alleged offence. 16. Criminal Revision is allowed.