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Madhya Pradesh High Court · body

2020 DIGILAW 151 (MP)

Shahrukh Khan v. State of M. P.

2020-01-28

S.A.DHARMADHIKARI

body2020
ORDER 1. This instant revision petition under section 397 read with 401 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner/accused assailing the order dated 27.11.2019 passed by Sessions Judge, Ashoknagar in S.T. No. 116/2019, whereby the charge under section 306 of the IPC has been framed against the petitioner. 2. Learned counsel for the petitioner contended that prima facie on the facts and evidence as adduced by the prosecution in the case, no offence under section 306 of the IPC is made out against the petitioner/accused as there is absolutely no evidence to infer that the petitioner in any manner instigated, aided or provoked the deceased to commit suicide. Merely because the petitioner had some altercation with the deceased immediately before committing suicide, it cannot be said that he abetted the deceased to commit suicide. Since no ingredient of abetment is borne out from the facts of the prosecution case, learned trial Court committed an error in framing charge under section 306 of the IPC against the petitioner. Moreover, there is nothing on record to demonstrate that there was any previous enmity and such altercation/harassment was meted out to the deceased on regular basis for quite long time which compelled the deceased to commit suicide. Learned counsel for the petitioner has relied upon the judgments passed by the Apex Court in the case of Netai Dutta v. State of West Bengal [ (2005) 2 SCC 659 ] and Sanju @ Sanjay Singh Sengar v. State of M.P. 2002 (2) JLJ 275 =[ (2002) 5 SCC 371 ] and contended that the petitioner has not committed any willful act or omission or intentionally aided or instigated the deceased in committing the act of suicide. There is no case that the petitioner has played any part or any role in any conspiracy which ultimately instigated or resulted in thecommission of suicide by deceased. 3. Learned counsel for the respondent/State, on the other hand, submitted that deceased had committed suicide by lying on railway track only after some altercation had taken place between the petitioner and deceased. Since the deceased committed suicide due to the conduct of the petitioner, the trial Court has rightly framed the charge under section 306 of the IPC. 4. 3. Learned counsel for the respondent/State, on the other hand, submitted that deceased had committed suicide by lying on railway track only after some altercation had taken place between the petitioner and deceased. Since the deceased committed suicide due to the conduct of the petitioner, the trial Court has rightly framed the charge under section 306 of the IPC. 4. The question which comes for consideration is as to whether the aforesaid allegation can be said to be a cause on prima facie basis for constituting an offence of abetment defined in section 107 of the IPC read with section 306 of the IPC. 5. Section 306 IPC under which the accused are charged reads as under : "306 I.P.C. 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." 6. Dection 107 IPC sets out as to what constitutes abetment. The section reads as follows : "107. 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. 7. A plain reading of the provisions of section 306 of IPC reveals that to justify framing of charge under this section, the following ingredients are necessary to co-exist: (a) Death due to suicide. (b) Accused abets the commission of suicide. 8. In Sanju @ Sanjay Singh Sengar v. State of MP. (supra), the Supreme Court observed as under : “6. Section 107 of 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.” 9. The Supreme Court further observed in paragraph 12 of the said decision that the word "instigate" denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of means 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 means rea. The words expressed in the case before the Supreme Court were "to go and die". As a result of such an utterance, the deceased went and committed suicide. Yet, the Supreme Court was of the view that an offence under section 306 of IPC was not made out because the element of means rea was missing. 10. In Netai Dutta v. State of West Bengal (supra), the Supreme Court reiterated the same view that an offence under section 306 of IPC would stand only if there is an abetment for the commission of the crime. The supreme Court observed that the parameters of 'abetment' have been stated in section 107 of IPC. 11. Reference further may be made to the decision of this Court in the case of Babbi @ Jitendra and others v. State of M.P. 2008(2) MPHT 160 wherein it has been held as under : “11. A person is said to 'instigate' another to an act, when he actively suggests or stimulates him to the act by means of language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word 'instigate' means to goad or urge forward or to provoke, incite, urge or encourage to do an act. 12. On examining the facts of the present case as they are, it appears that none of the accused goaded or urged forward, provoked, incited or urged or encouraged the deceased to commit suicide. They merely refused to return or refund the money of deceased allegedly kept by them. They never intended that deceased should commit suicide. 13. Since there is absolutely no material on record to indicate that petitioners in any manner instigated, incited or provoked the deceased to commit suicide, or to indicate any intention on their part that deceased should commit suicide, it cannot be held that petitioners in any manner abetted deceased to commit suicide. They never intended that deceased should commit suicide. 13. Since there is absolutely no material on record to indicate that petitioners in any manner instigated, incited or provoked the deceased to commit suicide, or to indicate any intention on their part that deceased should commit suicide, it cannot be held that petitioners in any manner abetted deceased to commit suicide. In the absence of essential ingredient of abetment, no charge for the offence under section 306 of Indian Penal Code can be framed against the accused persons.” 12. In view of the above, it is evident that mere allegation of altercation before committing suicide cannot be a cause to constitute an offence even on prima facie basis. 13. It would be appropriate to mention here that if there is material on record to indicate that due to some social constraint or compelling psychological factor or the victim/deceased being of extreme weak or meek temperament and knowing so the accused extends threat then in that situation offence may prima facie be constituted for the purpose of framing of charge. 14. In the present case, there is no such material to indicate that the deceased namely- Amar Singh was of weak temperament or was constrained by some social compulsion that mere allegation of altercation between them could have driven him to commit suicide. In the absence of any such material, mere altercation cannot constitute abetment. 15. In view of the aforesaid analysis, this Court is of the considered view that the essential ingredients of 'abetment' are absent in the instant case so to constitute an offence under section 306 of IPC. Therefore, the learned Sessions Judge failed to exercise jurisdiction in accordance with law. In these circumstances, the petitioner is entitled to be discharged of offence under section 306 of IPC. 16. Accordingly, this revision petition is allowed. The impugned order dated 27.11.2019 framing charge against the petitioner for commission of offence under section 306 of I.P.C. Stands set- aside and the petitioner is acquitted of the alleged charge. 17. A copy of this order be sent to the trial Court for necessary compliance. ..................