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Madhya Pradesh High Court · body

2021 DIGILAW 105 (MP)

Prashant v. State of M. P.

2021-02-04

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. 1. This is the first application filed under Section 438 Cr.P.C. by the applicant - Prashant @ Raja in the apprehension of arrest by Police in connection with Crime No. 675/2020 registered at Police Station Rajendra Nagar, Indore, concerning offence u/s. 306 read with Section 34 of the IPC. 2. As per prosecution story, on 23.7.2020, a 'Merg' was registered at No. 25/2020 u/s. 174 of the Cr.P.C. upon receipt of information about the death of Sunil Gupta aged about 45 years resident of DIET campus Indore by hanging in his house. Initially, the investigation was carried out by Sub Inspector Ms. Sushma Patolia. She recovered the dead body from the house and sent for postmortem and as per postmortem report, Sunil Gupta died because of "asphyxia as a result of hanging". A suicide note was also recovered along with the dead body in which, the deceased has named applicant Prashant @ Raja Shastri - Assistant Gr.II, Ms. Anita Bhimgade working as Office Superintendent; and Smt. Anvita Shastri working as assistant Gr.II; in the DIET and all, are residing in the campus in their respective allotted accommodation. The wife of the deceased used work as a maid in the houses. They permitted her to live in a vacant one-room house situated in the campus without any authority. As per suicide note, all the accused allegedly used to pressurise him to vacate the said house. The deceased has also mentioned in the suicide note that he used to deposit some amount like 1000/-, 3000/- per month with the applicant which became Rs. 3,35,000/-, he used to make entries t in the diary, he has further disclosed that during corona he was in need of the money and demanded from the applicant but he refused to return him and kept the diary and told him to vacate the hose, therefore, he is committing suicide. The police have recorded the statements of wife - Pinku, daughter - Harshita and son - Durgesh and registered the FIR on 29.11.2020 against the present applicant Prashant @ Raja and other co-accused Smt. Anita and Smt. Anvita for the offence u/s. 306 read with Section 34 of the IPC. 3. The police have recorded the statements of wife - Pinku, daughter - Harshita and son - Durgesh and registered the FIR on 29.11.2020 against the present applicant Prashant @ Raja and other co-accused Smt. Anita and Smt. Anvita for the offence u/s. 306 read with Section 34 of the IPC. 3. Learned senior counsel appearing for the applicant submits that co-accused Anita Bhimgade is Office Superintendent since deceased along with his family was living illegally in a house which is in a dilapidated condition, without any permission and authority from the Principal, therefore, he was directed to vacate the same. This fact has been verified by the Principal of DIET vide letter dated 31.7.2020 to the police. The wife of the deceased is working as a domestic maid in the house of co-accused Smt. Anita and Smt. Anvita and according to her section 161 statement, it was not known to her as to whether her husband used to deposit money with applicant Prashant @ Raja Shastri. She has also stated that because of the Corona her husband became jobless and came into depression, hence he might have committed suicide. Learned senior counsel further submits that provisions of Section 306 are not attracted as the present applicant had never instigated the deceased to commit suicide. Being an Office Superintendent, the co-accused- Smt. Anita has directed the deceased to vacate the house as he was living with his family in the house without any permission and authority, which cannot be said to be an instigation by a Government employee. There is a delay in lodging the FIR. The applicant is ready to cooperate with the investigation as and when he is called, he will appear in the Police station. 4. Learned senior counsel also submits that if the applicant is arrested, he may suffer the consequential effect like suspension or termination from service. The police have also obtained the affidavit of the wife of the deceased - Smt. Pinki Gupta in which she has stated that she is earning by way of domestic work in the house of co-accused and she is living in the house without any permission and rent and her husband was under the mental tension because of he was jobless and the present applicant did not commit any mental or physical torture with him. The said affidavit is available in the case-diary. The said affidavit is available in the case-diary. Now it appears that under the ill advice she is opposing the bail application in order to get protection from eviction. Hence, the applicant is entitled to protection from his arrest. 5. On the other hand, learned Panel Advocate opposes the prayer by submitting that as per case-diary and the suicide note of the deceased, the arrest of the applicant is necessary because he has been named in the suicide note. 6. Dr. Vivek Pandey, appearing on behalf of the objector submits that so far present applicant is concerned, there is the specific allegation against him in a suicide note left by the deceased. The deceased used to deposit some amount monthly with him and record the same in his personal diary. Before, the said incident, he met the present applicant and demanded his money back, instead of returning money, he has kept the diary and threatened him. He further submits that so far the affidavit given by the objector is concerned, same was taken by the applicant and other co-accused by way of threatening of eviction from the house, therefore, same may not kindly be not considered in this case. The objector has also filed a complaint to Chief Minister, Home Minister and other higher authorities. 7. Shri Sirpurkar, learned Senior counsel further submits that the affidavit given by the objector is available in police diary and that was given by the objector herself to the police. Apart from the affidavit, there are statement under Section 161 of Cr.P.C. of the wife and children of the deceased in which they have not made any allegation against the applicant and other co-accused persons. Now, under some ill-advise, she has changed her stand and now opposing this bail application. Even otherwise, the co-accused persons have been granted bail by this court on the merits of the case, not on the basis of the affidavit of the objector. 8. Per contra, Dr. Vivek Pandey submits that the deceased alongwith his family members was residing in the temporary house situated in the DIET premises and during Covid-19 period he was directed to vacate the same which ought not to have been done by the accused persons, therefore, he had committed suicide, thus allegation of instigation is established. 9. 8. Per contra, Dr. Vivek Pandey submits that the deceased alongwith his family members was residing in the temporary house situated in the DIET premises and during Covid-19 period he was directed to vacate the same which ought not to have been done by the accused persons, therefore, he had committed suicide, thus allegation of instigation is established. 9. I have perused the case-diary especially the suicide note in which the deceased has written that he is living in the DIET campus since 4.2.2013 and he used to deposit Rs. 3,000/-, 4,000/-, 6,000/-, 9,000/-, 10,000/- on monthly basis with Prashant @ Raja Shastri till October 2018 which became Rs. 3,35,000/- in total. The applicant has kept his diary and did not return the amount and told him to vacate the house. The two other co-accused have been named only in the last two lines of the suicide note that they are responsible for his death because last few days, all the three were harassing him. 10. There is an unexplained delay in lodging the FIR. So far the present applicant is concerned, there are allegations against him by the deceased in his suicide note but even if deceased was directed to vacate the house he had another remedy under the law instead to commit suicide. For recovery of the money, he could have resorted other remedy under the law. His wife and children do not know deposit of such huge amount. Even after his death, the possession of his family member would not be legalised. The affidavit given by the objector is available in the CD of the police it means same was given by the objector herself not by the accused. The applicant is permanent Government employees there is no possibility of his absconding from the city. 11. However, the conduct of the objector is not appreciable. Earlier wife, daughter and son of the deceased gave a statement under Section 161 of Cr.P.C. in favour of the accused and sworn the affidavit in presence of the police which part of the CD. Now she has taken somersault and changed her statement, the reasons are obvious. 12. In the case of Arnab Manoranjan Goswami Vs State of MH and ors. the Supreme Court of India has considered the law in respect of applicability of section 107 and 306 of the I.P.C. in the case of suicide. Now she has taken somersault and changed her statement, the reasons are obvious. 12. In the case of Arnab Manoranjan Goswami Vs State of MH and ors. the Supreme Court of India has considered the law in respect of applicability of section 107 and 306 of the I.P.C. in the case of suicide. The relevant paras which guide us are as under:- "48. Dealing with the provisions of Section 306 of the IPC and the meaning of abetment within the meaning of Section 107, the Court observed: "12. In order to bring out an offence under Section 306 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. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note." The Court noted that the suicide note expressed a state of anguish of the deceased and "cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide". Reversing the judgment of the High Court, the petition under Section 482 was allowed and the FIR was quashed. 49. In a concurring judgment delivered by one of us (Dhananjaya Y. Chandrachud J) in the decision of the Constitution Bench in Common Cause (supra), the provisions of Section 107 were explained with the following observations: "458. For abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct or action which (in the context of the present discussion) facilitates another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC." 50 More recently in M Arjunan v. State (represented by its Inspector of Police), a two judge Bench of this Court, speaking through Justice R. Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations: "7. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC." 50 More recently in M Arjunan v. State (represented by its Inspector of Police), a two judge Bench of this Court, speaking through Justice R. Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations: "7. The essential ingredients of the offence under Section 306 IPC are : (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC." 51. Similarly, in another recent judgment of this Court in Ude Singh v. State of Haryana, a two judge Bench of this Court, speaking through Justice Dinesh Maheshwari, expounded on the ingredients of Section 306 of the IPC, and the factors to be considered in determining whether a case falls within the ken of the aforesaid provision, in the following terms: "38. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 39. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 39. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased." Similarly, in Rajesh v. State of Haryana, a two judge Bench of this Court, speaking through Justice L. Nageswara Rao, held as follows: "9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 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 IPC." In a recent decision of this Court in Gurcharan Singh v. State of Punjab, a three judge Bench of this Court, speaking through Justice Hrishikesh Roy, held thus: "15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased." 55. Now in this backdrop, it becomes necessary to advert briefly to the contents of the FIR in the present case. The FIR recites that the spouse of the informant had a company carrying on the business of architecture, interior design and engineering consultancy. According to the informant, her husband was over the previous two years "having pressure as he did not receive the money of work carried out by him". The FIR recites that the deceased had called at the office of the appellant and spoken to his accountant for the payment of money. Apart from the above statements, it has been stated that the deceased left behind a suicide note stating that his "money is stuck and following owners of respective companies are not paying our legitimate dues". The FIR recites that the deceased had called at the office of the appellant and spoken to his accountant for the payment of money. Apart from the above statements, it has been stated that the deceased left behind a suicide note stating that his "money is stuck and following owners of respective companies are not paying our legitimate dues". Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC. Considering the facts and circumstances of the case and the arguments, It is directed that in the event of arrest of the applicant in connection with the aforesaid crime number, she shall be released on bail upon her furnishing personal bond in the sum of Rs. 50,000/- (Fifty Thousand) with one surety in the like amount to the satisfaction of the arresting officer. This order shall be governed by the conditions No. 1 to 3 of sub-section (2) of section 438 Cr.P.C. The applicant shall co-operate with the investigation.