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2019 DIGILAW 474 (MP)

PRAKASH CHANDRA GARG v. STATE OF M. P.

2019-07-02

S.K.AWASTHI

body2019
JUDGMENT : 1. Shri Vinay Saraf, learned Senior Counsel with Shri Sanjil Jain, learned counsel for the applicants. Shri Gaurav Kumar Verma, learned Public Prosecutor for the respondent/State. Heard. This revision application has been filed by the applicants under section 397/401 of the Criminal Procedure Code feeling aggrieved by the order dated 2-3-2019 passed by Additional Sessions Judge, Neemuch in S.T. No. 79/2018, whereby the trial Court has framed the charge for commission of offence punishable under section 306 of the Indian Penal Code against them. 2. The facts leading to the filing of the present case are that on 30-5-2018, police-Station-Neemuch Cantt., District-Neemuch received an information regarding the unnatural death of one Vijay Kumar Garg aged about 50 years. On the basis of which Police registered Merg No. 15/2018 under section 174 of the Criminal Procedure Code. During the course of inquiry of the Merg, it was found that there was a dispute between applicant No. 1 and the deceased in respect to the share in the property, due to which the applicants were torturing and harassing the deceased and consequently, he committed suicide by consuming poison. The deceased was taken to Fortis Hospital, Udaipur for treatment, wherein deceased Vijay Kumar Garg leveled the allegations of torturing and harassment against the applicants in his video dying declaration. On the basis of the aforesaid inquiry, police registered FIR bearing Crime No. 332/2018 for commission of offence punishable under section 306 of the Indian Penal Code at Police Station-Neemuch Cantt., District-Neemuch. After completion of the investigation, charge-sheet was filed before the Court of Judicial Magistrate First Class, Neemuch. 3. The offences sought to be charged against the accused persons were triable by the Court of Session. Accordingly, the case was committed to the Court of Session for trial. The trial Court vide the impugned order dated 2-3-2019 framed charge against the accused persons for commission of offence punishable under section 306 of Indian Penal Code. The applicants have filed this revision application on the ground that the ingredients of offence charged against the present applicants are not made out and therefore, the impugned order deserves to be set aside. 4. The contention of the learned counsel for the applicants is that material collected by the police do not disclose essential ingredients of the alleged offence of abetment to commit suicide against the applicants. 4. The contention of the learned counsel for the applicants is that material collected by the police do not disclose essential ingredients of the alleged offence of abetment to commit suicide against the applicants. For constitution of the commission of offence of abetment and to prosecute a person under section 306 of the Indian Penal Code, there has to be clear mens rea to commit the offence, there has to be active act or direct act having close proximity with the act of commission, which led the deceased to commit suicide seeking no other option. The alleged act beyond any reasonable doubt must have been intended to push the deceased into such a situation to commit suicide. If the evidence collected by the Police accepted in their face value could not be said to have been intended to instigate, incite or encourage with reasonable certainty suggestive of the consequences for commission of the suicide. It is further argued that the applicants are residing separately from the deceased and there was no communication between them since last so many months as they were under litigation with each other since long. Even if all the allegations levelled in the FIR, statements recorded under section 161 of the Criminal Procedure Code alleged dying declaration video taken into consideration as it is, no offence is made out on the face value against the present applicants. 5. It is further submitted that alleged dying declaration video was not forwarded to the Forensic Expert for establishing that the video was of the deceased and unhampered. Under these circumstances, learned trial Court has committed error in framing the charge for commission of offence under section 306 of the Indian Penal Code against the applicants. 6. On the other hand, learned Public Prosecutor for the respondent/State supported the impugned order and prayed for dismissal of the revision petition by contending that there is ample material available on record to presume that the applicants have abetted the deceased to commit suicide. So, it cannot be said that the trial Court has committed any illegality in framing the charge for offence under section 306 of the Indian Penal Code. 7. I have considered the facts of the case and rival contentions of the parties. 8. So, it cannot be said that the trial Court has committed any illegality in framing the charge for offence under section 306 of the Indian Penal Code. 7. I have considered the facts of the case and rival contentions of the parties. 8. Before adverting to the contentions raised by the learned counsel for the parties, it would be appropriate to consider the factual background, in which alleged incident has taken place. 9. It is admitted position that applicant No. 1 is elder brother of the deceased; whereas applicant No. 2 is nephew of the deceased and there was dispute amongst them in respect of share in the ancestral property, due to which applicants were torturing and harassing the deceased and consequently, he committed suicide by consuming poisonous substance. 10. The parameters of ‘abetment’ have been stated in section 107 of the Indian Penal Code, which defines abetment of a thing as follows :— “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.” 11. Learned counsel for the petitioner has placed reliance on the judgment of Hon’ble Supreme Court in the case of S. S. Cheema vs. Vijay Kumar Mahajan and another, reported in (2010) 12 SCC 190 , the allegations levelled were as under : “An enquiry was conducted by the Security Officer of the University, the appellant herein, regarding the theft of a mobile phone. A dispute arose between the deceased and H. The deceased committed suicide during the course of enquiry, by jumping in from of a train, leaving a suicide note. In the suicide note it is stated that he did not commit the theft and he had committed suicide because he was falsely implicated in the theft case of a mobile phone.” 25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In the suicide note it is stated that he did not commit the theft and he had committed suicide because he was falsely implicated in the theft case of a mobile phone.” 25. 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. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under section 306, Indian Penal Code 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. When the appellant was in no manner connected with this case and there was no credible material to connect the appellant with the crime, it would be a futile exercise to compel him to undergo a criminal trial.” 12. In the case of State of West Bengal vs. Orilal Jaiswal, reported in (1994) 1 SCC 73 , Hon’ble Supreme Court has observed as under : “This Court has cautioned that the Court 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. 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.” 13. In the case of Gangula Mohan Reddy vs. State of A.P., reported in (2010) 1 SCC 750 , whereby Hon’ble Supreme Court has held thus : “Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In the case of Gangula Mohan Reddy vs. State of A.P., reported in (2010) 1 SCC 750 , whereby Hon’ble Supreme Court has held thus : “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 - In order to convict a person under section 306, Indian Penal Code 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 committs suicide. - Also, reiterated, if it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference 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. - Herein, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under section 306 made out– Hence, appellant’s conviction, held unsustainable.” 14. The Hon’ble Supreme Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 has observed thus :— “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. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under section 306, Indian Penal Code 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/she commits suicide.” 15. 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/she commits suicide.” 15. Looking to the facts of the case, it is found that the alleged harrassment may be caused for committing suicide, but would not amount to abetment to commit the same as defined in section 107 of Indian Penal Code and in the facts and circumstances of the present case, there is no evidence with regard to provocation, incitement or encouragement for commitment of suicide by the deceased. Therefore, the trial Court has committed error in framing charge against the present petitioner for an offence punishable under section 306 of the Indian Penal Code. 16. Taking this view of the matter, the present revision petition is allowed. The impugned order dated 2-3-2019 passed by Additional Sessions Judge, Neemuch in S.T. No. 79/2018 is hereby set aside and the applicants- Prakash Chandra Garg and Harshit Garg are discharged from the commission of offence under section 306 of the Indian Penal Code. 17. Let a copy of this order be sent to the concerned trial Court for information and compliance. Certified copy, as per rules.