Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 140 (MP)

Irfan Ali v. State of M. P.

2021-02-10

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. 1. This is criminal revision filed under Section 397 of Cr.P.C. by the applicant (Irfan Ali), against the order dated 3.12.2020 passed in ST No. 227/2020 whereby charges under section 498-A and 306 of I.P.C. have framed against him by the learned IVth Additional Session Judge, Indore in connection with Crime No. 567/2020, registered at Police Station Kotwali, District Dewas. 2. As per the prosecution story, on 24.8.2020 a 'Merg' No. 30/2020 was registered under section 174 of the Cr.P.C. upon the information of the death of Rinki @ Sara @ Joya w/o. Irfan Ali. The dead body was recovered and sent for post mortem. As per the post mortem report, she died because of suicide by hanging herself in the bedroom. After investigation, it was revealed that the deceased was married to the present applicant 10 years ago and they have two sons aged about 9 and 7 years respectively. She doubted the extramarital affairs of the applicant with one Karishma Choudhary. The deceased left a suicide note that she is committing suicide Karishma Choudhary has ruined her life and she alone is responsible for her death and nobody else. After recovering the suicide note the police have recorded the statements of the mother of the deceased-Smt. Reeta Rajani; father-Shri Dayanand Rajani and sister-Ms. Nikita Rajani. According to all of them, Rinki i.e. the deceased got married to the present applicant and since the marriage was inter-religion, therefore, due to religion conversion she became Sara @ Joya. After the marriage, while visiting their house, she used to complain that on a petty issue the applicant is habitual in assaulting her. She was mentally tensed as the applicant was living in another Flat with Karishma Choudhary. On the date of the incident, they tried to call her on phone, but she did not attend the call. Near about 2.15 am., the applicant's brother-Imran gave a call to them. They went to the M.G. Hospital and came to know that Rinki has committed suicide. The police have also recorded the statement of Ms. Karishma Choudhary who stated that she is in the profession of modelling and fashion-show and due to which she came in the contact with the present applicant three years ago. She used to call him by Whatsapp chatting in connection with her professional work. The police have also recorded the statement of Ms. Karishma Choudhary who stated that she is in the profession of modelling and fashion-show and due to which she came in the contact with the present applicant three years ago. She used to call him by Whatsapp chatting in connection with her professional work. She has got engaged five months ago and her marriage would be in November 2020. She has further disclosed that Rinki has committed suicide because she might have some dispute with her husband. The police have also recorded the statement of other model girls who have stated that they have never seen Karishma Choudhary and the applicant together. On the basis of statements, the police have charged the applicant under section 306 and 498-A of the I.P.C. and arrested him. The investigation has been completed and the Final Report (Chalan) is filed on 22.10.2020. Now vide order dated 03/12/2020 learned Additional Session Judge has framed charges under section 498-A and 306 of I.P.C. against the applicant, hence this revision petition before this court. 3. Shri S.K. Vyas, learned senior counsel appearing for the applicant, has argued that the wife of the applicant has committed suicide after 10 years of the marriage. They have two sons. The Police has recorded the statement of both the sons in which they have not stated anything adverse against the applicant. Even Ms. Karishma Choudhary and other model girls have not made any allegation about an affair with Karishma Choudhary. During ten years of the marriage, the deceased did not make any complaint of cruelty and harassment by the applicant. The police have recovered the Smart Phone of the deceased in which they did not find any objectionable photo or video and chatting. Since the applicant is engaged in the profession of Event Manager, therefore, he is bound to come in contact with various model girls. He has never instigated or abated his wife to commit suicide the ingredient of section 107 and 306 are missing in this case. There is no evidence about cruelty meted out to the deceased. The deceased had cursed with Ms. Karishma Choudhary therefore in the suicide Ms. Karishma Choudhary was held responsible for ruining her life, but police have made Ms. There is no evidence about cruelty meted out to the deceased. The deceased had cursed with Ms. Karishma Choudhary therefore in the suicide Ms. Karishma Choudhary was held responsible for ruining her life, but police have made Ms. Karishma Choudhary as a witness by recording her statement under section 161 of the Cr.P.C. The applicant was not named in the suicide note by the deceased. He has been falsely implicated for the offence punishable under section 306 and 498-A of the I.P.C. by the police. Learned Additional Session Judge did not consider the material collected by the police against the petitioner and framed the charges mechanically without application of mind. 4. On the other hand, the learned Panel Advocate appearing for the respondent/State opposes the prayer by submitting that from the suicide note it is prima facie establishes that the applicant was in an extramarital affair which has persuaded the deceased to commit suicide. At the most, it can be a case of cruelty by the husband to his wife under section 498-A of the I.P.C. for which he can not be discharged wholly from all the charges at this stage. The trail may take any turn on the basis of the evidence brought before the court The applicant's extramarital affairs and his continuous association with females models, indirectly abetted or instigated his wife to commit suicide. I have heard the learned senior counsel and learned penal counsel for the state and perused the Final Report (Chalan). 5. The applicant entered into an inter-religion marriage with the deceased 10 years ago. They have two sons who have not stated anything in their statement under section 161 of the Cr.P.C. about the stressed relationship between parent. The allegations made by the parents and sister are prima facie omnibus in nature. During the past 10 years, there was no complaint to the police by the deceased and or her parents. In the suicide note also she did not name the applicant in respect of instigation or abetment. The applicant was in a professional relationship with Ms. Karishma Choudhary and apart from the suicide note nothing incriminating material has been collected by the police against the applicant. 6. The law concerning Section 107 and 306 of IPC is well settled. In the case of Bhagwan Das Vs. The applicant was in a professional relationship with Ms. Karishma Choudhary and apart from the suicide note nothing incriminating material has been collected by the police against the applicant. 6. The law concerning Section 107 and 306 of IPC is well settled. In the case of Bhagwan Das Vs. Kartar Singh & Others: (2007) 11 SCC 205 , the Apex Court has held that mere harassment of wife by a husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws, this, however, would not by itself attract Section 306 IPC read with Section 107 IPC. In the case of K.V. Prakash Babu V/s. State of Karnataka: AIR 2016 SC 5430 , the Apex Court has held that the concept of mental cruelty depends upon individualistic perception regard being had to one's endurance and sensitivity. 7. In the case of K.V. Prakash Babu v. State of Karnataka, (2017) 11 SCC 176 Hon'ble the Supreme Court of India has held that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 IPC but that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments: "17. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Anjanamma, being not able to digest the humiliation, committed suicide. The mother and the brother of Anjanamma paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498-A IPC and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the appellant-accused under Section 306 IPC. 18. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify. 19. Consequently, appeals are allowed. The conviction under Sections 306 and 498-A IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case." 8. The Supreme Court of India in the recent case of Arnab Manoranjan Goswami Vs. State of Maharashtra and Others has again summarised the law in respect of the scope of section 107 & 306 of the I.P.C., the relevant paragraphs are as under:- "57. 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." 58. 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. 59. 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. 59. 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." 60. 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." 61. 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. 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. 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. 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." 62. 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." 63. 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. 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." 64. In Vaijnath Kondiba Khandke v. State of Maharashtra, a two judge Bench of this Court, speaking through Justice U.U. Lalit, dealt with an appeal against the rejection of an application under Section 482 of the CrPC, for quashing an FIR registered under Sections 306 and 506 read with Section 34 of the IPC. A person serving in the office of the Deputy Director of Education Aurangabad had committed suicide on 8 August 2017. His wife made a complaint to the police that her husband was suffering from mental torture as his superiors were getting heavy work done from her husband. This resulted in him having to work from 10 AM to 10 PM and even at odd hours and on holidays. The specific allegation against the appellant was that he had stopped the deceased's salary for one month and was threatening the deceased that his increment would be stopped. This Court noted that there was no suicide note, and the only material on record was in the form of assertions made by the deceased's wife in her report to the police. The Court went on to hold that the facts on record were inadequate and insufficient to bring home the charge of abetment of suicide under Section 306 of the IPC. The mere factum of work being assigned by the appellant to the deceased, or the stoppage of salary for a month, was not enough to prove criminal intent or guilty mind. Consequently, proceedings against the appellant were quashed. 65. On the other hand, we must also notice the decision in Praveen Pradhan (supra) where a two judge Bench of this Court, speaking through Justice B.S. Chauhan, dismissed an appeal against the rejection of an application under Section 482 of the CrPC by the High Court for quashing a criminal proceeding, implicating an offence under Section 306 of the IPC. On the other hand, we must also notice the decision in Praveen Pradhan (supra) where a two judge Bench of this Court, speaking through Justice B.S. Chauhan, dismissed an appeal against the rejection of an application under Section 482 of the CrPC by the High Court for quashing a criminal proceeding, implicating an offence under Section 306 of the IPC. The suicide note which was left behind by the deceased showed, as this Court observed, that "the appellant perpetually humiliated, exploited and demoralised the deceased, who was compelled to indulge in wrongful practices at the workplace, which hurt his self-respect tremendously." The Court noted that the appellant always scolded the deceased and tried to always force the deceased to resign. Resultantly, the Court observed: "19. Thus, the case is required to be considered in the light of the aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the appellant, upon non-fulfillment of which, he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for long durations in the factory, vis-à-vis other employees which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, "had there been any other person in his place, he would have certainly committed suicide" is what makes the present case distinct from the aforementioned cases. Considering the facts and circumstances of the present case, we do not think it is a case which requires any interference by this Court as regards the impugned judgment and order [Criminal Miscellaneous Application No. 420 of 2006, decided on 5-1-2012 (Utt)] of the High Court. The appeal is, therefore, dismissed accordingly." 9. In the case of Gurjit Singh Vs. State of Punjab the Supreme Court of India has held that Section 498-A and Section 306 of the IPC are independent and constitute different offences. The appeal is, therefore, dismissed accordingly." 9. In the case of Gurjit Singh Vs. State of Punjab the Supreme Court of India has held that Section 498-A and Section 306 of the IPC are independent and constitute different offences. Relevant paras are reproduced below: "17. The Court observed that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". Though the court observed that to satisfy the requirement of instigation, 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. However, it has been observed that a reasonable certainty to incite the consequence must be capable of being spelt out. Relying on the judgment of this court in the case of State of West Bengal v. Orilal Jaiswal , it is observed 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 her life by committing suicide. It has further been held that Section 498-A and Section 306 of the IPC are independent and constitute different offences. It has been observed, that depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A of the IPC. It has further been observed, that if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, it may also amount to abetment to commit suicide. It is further observed, that, however, merely because accused had been held liable to be punished under Section 498-A of the IPC, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. 21. The court found that in the case there was no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. 21. The court found that in the case there was no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. It has been held that when the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected having regard to the meaning of the word "cruelty" in Section 498-A of IPC. It has been held that one of the circumstances which has to be taken into consideration by the court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. 33. Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498-A of the IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption. 34. It could further be seen from the evidence on record that the time gap between the last visit of the deceased to her parents with regard to the illegal demand and the date of commission of suicide is about two months. As such, there is nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the appellant. As such, there is nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the appellant. In the case of Sanju Alias Sanjay Singh Sengar v. State of M.P., this Court found that there was time gap of 48 hours between the accused telling the deceased 'to go and die' and the deceased 'committing suicide'. As such, this Court held that there was no material to establish that the accused had abetted the suicide committed by the deceased." 10. That in this case after carefully examining the evidence collected by the police this Court believes that at this stage there is no material on record to show that immediately before the deceased committing suicide there was cruelty either physical or mental meted out to the deceased by the applicant due to which the deceased had no other option than to commit the suicide. There is no material on record to reach a cause and effect relationship between cruelty and suicide. Hence the charge under section 306 of I.P.C. is not made out against the applicant at this stage, but to try the applicant under section 498-A I.P.C. there is enough material in the Final Report (Chalan). the learned Penal Lawyer is right in saying that the trial may take any turn on the basis of evidence about to come on record. There is the provision of adding and deletion of charge against accused during trial. Resultantly the charge under section 306 I.P.C. is quashed at this stage and the charge against the applicant under section 498-A I.P.C. is upheld. However, the learned trial court is not precluded to add the accused under section 319 Cr.P.C. or convict applicant in any other offence including section 306 I.P.C. based on evidence that may come in the trial without being influence by the observation made hereinabove. Hence this revision petition is partly allowed.