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2019 DIGILAW 455 (GUJ)

Rachana Ravindra Jain v. State Of Gujarat

2019-04-24

A.P.THAKER

body2019
ORDER : 1. Rule. Ms.Monali Bhatt, learned APP waives service of notice of rule on behalf of respondent no.1. By filing this writ application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to quash and set aside the FIR being C.R.No.I-119/2017 registered with Kadi Police Station, Taluka-Kadi, District-Mehsana for the offence punishable under Section 306 of the Indian Penal Code, 1860. 2. It is the case of the applicant that an advertisement was given by the deceased in the newspaper for marriage, thereafter, the applicant came in touch with him and the marriage of the applicant with the deceased had taken place on 10.4.2017 as per Hindu rites and rituals and the same was also registered with Sub-registrar of Marriages. This was the second marriage of both the applicant and the deceased. From the first marriage, deceased had two children, daughter-Apurva and son-Manas. First wife of the deceased had committed suicide and reason for such suicide was never disclosed to the applicant. It is stated that daughter-Apurva is currently residing in Kota and is preparing for her medical studies, while son-Manas is with the applicant. The applicant had accepted both the children of the deceased and was taking care of them. It is also stated that the applicant had never raised any objection or issues with regard to household work, expenses or living with both children. It is also stated that the deceased married with the applicant to fulfill his selfish desires as the deceased had been disowned by his family, friends and relatives and was suffering from depression and mental sickness since long. 2.1 It is also the case of the applicant that on 4.6.2017, the deceased attempted to commit suicide by consuming black coloured powder mixed with water. The applicant with the help of their neighbours, shifted the deceased to Bhagyodaya Hospital, however, the deceased expired. With these allegations, the complaint was filed and the applicant is arrested and she is in jail. 3. Heard Ms.Nimisha Sharma, learned advocate for the applicant and Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1-State. 4. Ms.Nimisha Sharma, learned advocate for the applicant has contended that the complaint is filed after two days of the incident, with a view to arraign the applicant as an accused. 3. Heard Ms.Nimisha Sharma, learned advocate for the applicant and Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1-State. 4. Ms.Nimisha Sharma, learned advocate for the applicant has contended that the complaint is filed after two days of the incident, with a view to arraign the applicant as an accused. She submitted that the first wife of the deceased had also committed suicide out of mental torture and depression, which indicates the mental status of the deceased. She also submitted that even the allegations made in the complaint are superficial that the applicant is of quarrelsome nature which led the deceased to commit suicide. She submitted that there is no motive on the part of the applicant as she is not going to get any advantage or benefit on the death of the deceased. She also submitted that it is alleged that the applicant was used to harass and torture the deceased and his son, however, it was hardly two months’ time from solemnization of their marriage and, therefore, it cannot be believed that the applicant had harassed the deceased to such an extent that he committed suicide. She further submitted that the note written in the diary of the deceased was six days prior to the incident and it was not written immediately before committing suicide. Not only that there is no proof that handwriting on the note is of the deceased. In support of her submission, she has relied upon following decisions:- Sanju alias Sanjay Singh v. State of Madhya Pradesh reported in (2002) 5 SCC 371 , in that case the Apex Court quashed the charge sheet for offence under Section 306 of IPC to hold that the words uttered in a quarrel or on the spur of moment, such as “to go and die” cannot be taken to be uttered with mens rea. It is in a heat of anger or emotion. • ?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 that act must have been intended to push the deceased into such a position that he committed suicide. • ?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 that act must have been intended to push the deceased into such a position that he committed suicide. Madan Mohan Singh vs. State of Gujarat and another reported in (2010) 8 SCC 628 -In this case it was opined that in order to bring out an offence under Section 306 of IPC, specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. Gurcharan Singh vs. State of Punjab reported in (2017) 1 SCC 433 -In this case, the Apex Court observed that the basic ingredients of Section 306 of IPC are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 of IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 of IPC, thus criminalizes the sustained incitement for suicide. Randhir Singh vs. State of Punjab reported in (2004) 13 SCC 129 -The Supreme Court in this case enunciated on the pith and purport of Section 306 IPC and opined as under: •? Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. •? More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of IPC. State of W.B. Vs. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. •? More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of IPC. State of W.B. Vs. Orilal Jaiswal reported in (1994) 1 SCC 73 – The Supreme Court in the case observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. Amalendu Pal v. State of West Bengal reported in (2010) 1 SCC 707 - 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 of abetting the offence of suicide should be found guilty. Ramesh Kumar vs. State of Chhattisgarh reported in (2001) 9 SCC 618 -In this case, the Supreme Court elucidated on the term ‘instigation’ and stated that “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. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Vijay Kumar Rastogi vs. State of Rajasthan reported (2012) Cri.L.J. 2342-In a similar observation was made in this case to hold that the word ‘urge’ means to advice or try hard to persuade somebody to do something, to make a person to move more quickly or in a particular direction, specially by pushing or forcing such person. Vijay Kumar Rastogi vs. State of Rajasthan reported (2012) Cri.L.J. 2342-In a similar observation was made in this case to hold that the word ‘urge’ means to advice or try hard to persuade somebody to do something, to make a person to move more quickly or in a particular direction, specially by pushing or forcing such person. In order to prove abetment, it must be shown that the accused kept on urging or annoying the deceased by words, taunts or willful omission or conduct which may even be wilful silence, until the deceased reacted, or pushing the deceased by his words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction. Secondly, the accused had the intention to provoke or urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly the presence of mens rea is the necessary concomitant of instigation. Thus, in order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 of IPC. Mohan vs. D.S.P., Karaikudi reported in (2011) 3 SCC 626 -In this case, it was held that 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. 4.1 In view of the aforesaid judicial dictum and obiter dicta it is clear that 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. 5. 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. 5. She further submitted that while the deceased was alive, he was a patient of depression and his treatment for the same was going on, which shows that the allegations made in the complaint are false and got up. In view of above, she submitted that the complaint does not disclose any prima facie case against the applicant and it is filed only with mala fide intention and ulterior motive of extorting money from the applicant. She has relied upon the statement dated 7.6.2017 of Balkrishna Vitthalbhai, neighbour of the deceased, who has stated in his statement that on 4.6.207, when he was at home, in the evening at about 5 p.m., the applicant herein called him to take her husband Arunbhai to the hospital. Thereafter, they had taken Arunbhai to Bhagyodaya Hospital. She submitted that if the applicant wanted to kill the deceased, she would not have taken him to the hospital. She also submitted that one Ravindarkumar Fulchand Jain has also stated in his evidence that when he went to the hospital, treatment of the deceased was going on and the present applicant was also present in the hospital. She submitted that there is no active role played by the applicant, there was no intention or motive of the applicant and she has not aided in commission of suicide. She, therefore, prays to allow this application by quashing the impugned complaint. 6. Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1-State has vehemently submitted that the allegations against the present applicant are serious in nature. She further submitted that charge sheet is already filed against the applicant and there is ample material to prove the charge against the applicant. She also submitted that from the evidence on record, it is clear that the applicant was harassing and giving mental torture to the deceased. 7. Ms.Bhatt has relied upon the statements given by son and daughter of the deceased. Son of the deceased-Manas has stated in his statement that the applicant used to quarrel with the deceased and she was not taking care of deceased and his family. 7. Ms.Bhatt has relied upon the statements given by son and daughter of the deceased. Son of the deceased-Manas has stated in his statement that the applicant used to quarrel with the deceased and she was not taking care of deceased and his family. Manas has also stated that on the fateful day when the health of his father deteriorated, the applicant denied to take him to the hospital and said that “let him die”. He has also stated in his statement that the applicant wanted to grab the property of the deceased and she was also not willing their daughter-Apurva to continue the studies. Due to these reasons, the deceased was remaining under constant pressure. He has said that these were the reasons for the deceased to commit suicide. She submitted that Apurva-daughter of the deceased has also stated in her statement that since she was residing at Kota, her father used to tell her that their new mother is not keeping them well. She has stated that the applicant wanted to grab the property by removing the name of the daughter and entering her name in the records. She has stated that the deceased told her that he is tired of all these things and he is unable to bear the torture. Thereafter, on 4.6.2017, the deceased committed suicide. 8. Ms.Bhatt has also submitted that so far as statements of neighbours and friends of the deceased, which have been relied upon by learned advocate for the applicant, are concerned, all these witnesses have also stated that they also came to know that the deceased committed suicide due to mental torture given by the applicant. She has also relied upon the extract of the diary produced at page 48 and 49 of the petition, wherein the deceased has clearly written that the applicant herein is responsible for his death. She submitted that this can be treated as dying declaration of the deceased, wherein he has given the name of the applicant. She submitted that in view of all these, this is not a case wherein complaint can be quashed and the trial may be allowed to proceed so that truth may come out. In view of all these, she prayed to reject present application. 9. Heard learned advocates for the parties and perused the material available on record. She submitted that in view of all these, this is not a case wherein complaint can be quashed and the trial may be allowed to proceed so that truth may come out. In view of all these, she prayed to reject present application. 9. Heard learned advocates for the parties and perused the material available on record. From the facts on record, it is clear that the marriage of the applicant with the deceased had taken place on 10.4.2017 and this was the second marriage of both of them. From the first marriage, deceased had two children, daughter named Apurva and a son-Manas. First wife of the deceased had committed suicide. He has two children, daughter-Apurva and son-Manas. It is also true that the deceased has committed suicide only within a period of two months from the date of marriage. 10. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 11. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 12. So far as evidence on record is concerned, it is clear from the statement of son of the deceased-Manas that the applicant used to quarrel with the deceased and she was not taking care of deceased and his family. Son of the deceased has also stated that on the fateful day when the health of his father deteriorated, the applicant denied to take him to the hospital and said that “let him die”. Son of the deceased has also stated that on the fateful day when the health of his father deteriorated, the applicant denied to take him to the hospital and said that “let him die”. He has further stated in his statement that the applicant wanted to grab the property of the deceased and she was also not willing their daughter-Apurva to continue the studies. Due to these reasons, the deceased was remaining under constant pressure and, therefore, he committed suicide. Apurva-daughter of the deceased has also stated in her statement that her father used to tell her that their new mother is not keeping them well. It is also stated by her that the applicant wanted to grab the property by removing the name of the daughter and entering her name in the records. She has stated that the deceased told her that he is tired of all these things and he is unable to bear the torture. Thereafter, on 4.6.2017, the deceased committed suicide. 13. This Court has also gone through the statements of neighbours and friends of the deceased, though these witnesses have stated that the applicant had accompanied the deceased to the hospital, they have also stated that they came to know that the deceased committed suicide due to mental torture given by the applicant. Considering the extract of the diary produced at page 48 and 49, the deceased has clearly written that the applicant is responsible for his death. This noting is hardly a week before the incident. Therefore, this can be said to be dying declaration of the deceased, wherein he has given the name of the applicant herein. In view of this, this Court finds that this is not a case wherein complaint can be quashed at this stage. This Court finds that there appears to be prima facie case against the applicant and it needs to be investigated and the accused is required to be put to trial so that truth may come out. 14. In the case of Munshiram Vs. State of Rajasthan reported in 2018 (5) SCC 678 , which has been relied by learned Additional Public Prosecutor Ms. Monali Bhatt for the State, it is found that in that case, the High Court has quashed the complaint which was filed for various offences, one of which under Section 306 of IPC. 14. In the case of Munshiram Vs. State of Rajasthan reported in 2018 (5) SCC 678 , which has been relied by learned Additional Public Prosecutor Ms. Monali Bhatt for the State, it is found that in that case, the High Court has quashed the complaint which was filed for various offences, one of which under Section 306 of IPC. In that case, the prosecution has relied on the FSL report to the effect that the suicide note was in the handwriting of the deceased and considering the factual matrix of the case, it was held by the Supreme Court that the High Court was wrong in setting aside the FIR and, therefore, the decision of the High Court was quashed and the investigating authority was permitted to complete the investigation. So far as decisions relied upon by learned advocate for the applicant is concerned, the same would not apply in the facts of the present case and in view of prima facie material available on record, this Court do not find it appropriate to entertain present application. 15. Considering the facts and circumstances of the case as well as the decision, as aforesaid, present application is dismissed. Rule is discharged. Interim relief, if any stands vacated.