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Madhya Pradesh High Court · body

2020 DIGILAW 112 (MP)

Varsha v. State of M. P.

2020-01-20

S.K.AWASTHI

body2020
ORDER : The applicant has preferred this revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against order dated 19/08/2019 passed by Third Additional Sessions Judge, Ratlam in S.T. No. 209/2014, whereby charge for commission of offence punishable under Section 306 of the IPC has been framed against the applicant. 2. Briefly stated facts of the case are that on 08/12/2013, one Manish Verma committed suicide and his dead body was found lying on the railway track. After receiving the information, regarding the unnatural death of the deceased, police registered Merg intimation under Section 174 of the Cr.P.C. and the dead body of the deceased was sent for postmortem. During the merg enquiry, it was found that co-accused-Sudeep was having illicit relationship with the applicant (the wife of deceased), due to which a quarrel was taken place between the deceased and the applicant, then he went away to the railway track and committed suicide by jumping before the running train. After completion of investigation, the charge-sheet was filed. Trial Court after appreciating the material available on record, vide order dated 19/08/2019 framed the charge for commission of offence punishable under Section 306 of the IPC against the applicant. 3. Learned counsel for the applicant submitted that there is no material available in the charge-sheet regarding abetment of the suicide by the present applicant and since the ingredients of Section 107 of the IPC are not fulfilled, therefore, charge under Section 306 of the IPC could not be framed against the applicant. There was no overt act on the part of the applicant, which had driven the deceased for taking such step. It is alleged that co-accused-Sudeep is having illicit relationship with the applicant, which may be a reason for the deceased-Manish Verma to commit suicide but it does not falls within the act of abatement to commit suicide, therefore, the trial Court has committed error in framing the charge for commission of offence punishable under Section 306 of the IPC against the applicant. Under these circumstances, he prayed for setting aside of the impugned order. 4. On the other hand, learned Public Prosecutor for the respondent 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 applicant has abetted the deceased to commit suicide. Under these circumstances, he prayed for setting aside of the impugned order. 4. On the other hand, learned Public Prosecutor for the respondent 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 applicant has 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 IPC against the applicant. 5. I have considered the facts of the case and rival contentions of the parties. 6. The parameters of 'abetment' have been stated in Section 107 of the IPC, 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. 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. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 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.” 7. The Hon'ble apex Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in 2009 (16) SCC 605 , has held as under:. “12. The Hon'ble apex Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in 2009 (16) SCC 605 , has held as under:. “12. As per the Section, a person can be said to have abetted in doing 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. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC. 16. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self. 19. In Som Nath Thapa & Ors. (supra), a three-Judge Bench of this Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus: "...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. (supra), a three-Judge Bench of this Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus: "...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at (1990) 4 SCC 76 the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage". 20. In view of the settled legal position, noted above, we are convinced that the trial court was correct in law in coming to the conclusion that a case for framing charge against the appellant had been made out. Similarly, the scope of revisional powers of the High Court under Section 401 of the Code being limited, the High Court was justified in dismissing the Revision Petition, preferred by the appellant. 8. Learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of S.S. Cheena vs. Vijay Kumar Mahajan & another, reported in 2010 (12) SCC 190 , the allegations leveled 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. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 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 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 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.” 9. 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 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 commits 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." 10. 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 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 that act must have been intended to push the deceased into such a position that he/she commits suicide.” 11. Apart from the above judgment of Hon'ble Supreme Court, learned counsel also placed reliance on the judgment of Hon'ble the Supreme Court in the case of Pinakin Mahipatray Rawal Vs. State of Gujarat, reported in 2013 Cr.L.R. (SC) 955 where, the Hon'ble Supreme Court observed in paragraph 26 of the judgment as under:- “26. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” 12. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” 12. Reverting back to the present case, if we apply the principle laid down by Hon'ble apex Court in the aforementioned cases, it appears that parents of the deceased-Manish Verma stated in their statement recorded under Section 161 of the Cr.P.C. before police that deceased-Manish Verma told them that the applicant is having illicit relationship with co-accused-Sudeep. However, there is nothing on record to show that at any point of time, the deceased found the applicant accompanied with co-accused-Sudeep. If the wife of the deceased was having illicit relations with co-accused-Sudeep, then the deceased-Manish Verma had an option to give divorce to the applicant on the ground of illicit relationship with co-accused-Sudeep, however, he has not opted for the same. If without taking any recourse of law, deceased decided to come to end his life, then the said act of the deceased would not come in the purview of section 107 of the IPC. 13. After considering the arguments advanced by the learned counsel for the parties, this court is of the view that the mere fact that the applicant has developed some intimacy with co-accused-Sudeep, during the subsistence of marriage and failed to discharge her marital obligations, as such would not amount to “cruelty”, which drive the deceased to commit suicide. To constitute an offence under Section 306, the Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the husband to commit suicide. 14. Taking this view of the matter, the present revision petition is allowed. The impugned order dated 19/08/2019 passed by Third Additional Sessions Judge, Ratlam in S.T. No. 209/2014 is hereby set aside and the applicant-Varsha is discharged from the commission of offence under Section 306 of the IPC. 15. 14. Taking this view of the matter, the present revision petition is allowed. The impugned order dated 19/08/2019 passed by Third Additional Sessions Judge, Ratlam in S.T. No. 209/2014 is hereby set aside and the applicant-Varsha is discharged from the commission of offence under Section 306 of the IPC. 15. Let a copy of this order be sent to the concerned trial Court for information and compliance. Certified copy, as per rules.