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2024 DIGILAW 1997 (ALL)

Kuldeep Nishad @ Deepu Nishad v. State of U. P.

2024-09-03

SHEKHAR KUMAR YADAV

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JUDGMENT : SHEKHAR KUMAR YADAV, J. 1. Learned AGA has filed counter affidavit today. 2. Supplementary affidavit and rejoinder affidavit has also been filed on behalf of applicant today. Let the same be taken on record. 3. Heard Mr. Gaurav Kakkar, learned counsel for the applicant and learned Additional Government Advocate for the State. 4. By means of this application, the applicant is seeking enlargement on bail in Case Crime No. 874 of 2017, under Sections 306 and 506 IPC, Police Station Meja, District Prayagraj. 5. Prosecution story is that the informant Ganga Ram Nishad has lodged the impugned FIR on 27.12.2017 alleging therein that his son Ramsagar was married to Puja, daughter of Ram Bhajan on 5th June, 2017. Accused Deepu son of Umesh Chandra Nishad alias Kallu Nipad was having illicit relation with his daughter-in-law Puja even before marriage and even after marriage, accused Deepu used to visit the matrimonial house of Pooja and was being tried to made physical relation with her at her matrimonial house and when Puja refused to do so, accused Deepu threatened her stating therein that he had made her sex video and would be viral on internet and Whatsapp. On the basis of that obscene video, accused Deepu used blackmailing Puja, who fed up with this act, has committed suicide on 12.09.2017 by hanging and before hanging, she herself written a suicide note, which was shown by the informant to Deepu’s mother, who took it to her house and when the informant asked to return it, she refused and started blackmailing his son Ramsagar by showing him the sex video and started demanding Rs. 5,00,000/- (five lakh rupees). Enraged by this act, the informant son Ramsagar also wrote a suicide note against Deepu and his mother Urmila Devi alias Semrahia and hanged himself on 18.12.2017 in the same room. As per suicide note, the reason for the death of his daughter-in-law Pooja and his son Ramsagar is against accused Deepu and his mother. It is further alleged that the alleged suicide note written by the informant’s son before committing suicide is a photocopy of the suicide note. It is further alleged that the accused persons are continuously threatening to kill the informant and his family. 6. Submission of learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case. It is further alleged that the accused persons are continuously threatening to kill the informant and his family. 6. Submission of learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case. The applicant is the maternal cousin of the deceased Pooja and when she was killed by her in-laws, the applicant was doing pairvi for registration of FIR against the informant, who is father-in-law of the deceased Pooja, due to this reason, the applicant has been implicated. The applicant has never committed any offence as alleged in the impugned FIR even the applicant has no concern with the alleged incident. It is a case of matrimonial death on account of matrimonial dispute between husband and wife, first, wife thereafter, her husband has committed suicide. Further submission is that the deceased Pooja was married with the son of informant, namely, Ram Sagar on 05.06.2017 and when deceased Pooja went to her matrimonial house, her in-laws including husband subjected her with cruelty in lieu of demand of dowry such as motorcycle and Rs. 50,000/- cash and when their demands were not fulfilled, they have killed the deceased Pooja on 12.09.2017, thereafter, father of the deceased lodged FIR against the in-laws i.e. husband Ram Sagar, father-in-law Gangaram (the present informant) and mother-in-law Gangadei on 13.09.2017 under Sections 498A, 304B and 3/4 Dowry Prohibition Act. As per postmortem report of the deceased Pooja, ligature mark as well as contusion 12cm X 6cm has been found on the skull of the deceased and cause of death has been mentioned as Asphyxia due to ante-mortem hanging. Further submission is that after three months of the death of deceased Pooja, her husband Ram Sagar has also committed suicide on 18.12.2017, thereafter, the impugned FIR has been lodged against the applicant and his mother Urmila Devi. As per postmortem report of deceased Ram Sagar, the cause of death has been mentioned as Asphyxia due to antemortem hanging. 7. Further submission is that although a suicide note written by the deceased alleged to have recovered but that too was photocopy and the same was sent for hand writing expert, but the report is not received as yet. Investigating officer has also not recorded the statement of parents of the deceased, who can very well be addressed the truth. 7. Further submission is that although a suicide note written by the deceased alleged to have recovered but that too was photocopy and the same was sent for hand writing expert, but the report is not received as yet. Investigating officer has also not recorded the statement of parents of the deceased, who can very well be addressed the truth. It is a case under Section 306 IPC, therefore, the burden is upon the prosecution to prove it. So far as allegation of obscene video is concerned, no video has been recovered. 8. Further submission is that there is no evidence on record, which goes to show that the applicant in any manner had ever instigated or abetted the deceased to commit suicide. An offence punishable under Section 306 IPC would stand only if there is an abetement for commission of crime. Except general allegation, there is no other evidence available on record to show that essential ingredients of Section 107 IPC can be attracted, therefore, it cannot be said that present appellant had instigated, provoked, incited, urged or encouraged the deceased to commit suicide. Essential ingredients of the offence under Section 306 IPC are completely missing even the contents of abetment of suicide have not been there as provided under Section 107 IPC. As per provisions of Section 306 IPC, there must be an ingredient of abetment to commit suicide but in the present case there is no ingredient of abetment either by instigation or by any other mode has been made by the applicant. Prima facie, no offence under Section 306 IPC is made out against the applicant, hence, the applicant may be enlarged on bail. Lastly, it is argued that the applicant is languishing in jail since 26.05.2023 having no previous criminal history. 9. In support of his submission, learned counsel for the applicant has placed reliance of Hon’ble Apex Court in the case of Prabhu vs. State Rep. by the Inspector of Police & another passed in Criminal Appeal No. 39981 of 2022 dated 30.01.2024 (paragraphs 8, 9 and 10) and Amalendu Pal vs. State of West Bengal passed in Criminal Appeal No. 2091 of 2009 and Arising Out of SLP (Crl.) No. 9483 of 2008 decided on 11.11.2009 (paragraphs 13, 19, 21 and 24). 10. by the Inspector of Police & another passed in Criminal Appeal No. 39981 of 2022 dated 30.01.2024 (paragraphs 8, 9 and 10) and Amalendu Pal vs. State of West Bengal passed in Criminal Appeal No. 2091 of 2009 and Arising Out of SLP (Crl.) No. 9483 of 2008 decided on 11.11.2009 (paragraphs 13, 19, 21 and 24). 10. Per contra, learned AGA vehemently opposed the prayer for grant of bail of the applicant and has submitted that the applicant is named as well as only charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. He has further submitted that a suicide note was also recovered from the place of occurrence in which the deceased has levelled serious allegations against the applicant. Trial has already been started and informant has been examined as PW-1 who supported the prosecution story. The ingredients of offence of abetment is fulfilled, therefore, the offence under Section 306 IPC is made out against the applicant. 11. I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record. 12. Before proceeding further, it is relevant to refer to the provisions of Section 306 IPC, which read as under: “Offence under Section 306 IPC: Section 306 of the Indian Penal Code talks about abetment of suicide and states that whoever abets the commission of suicide of another person, he/she shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.” 13. Abetment is defined in Section 107 IPC and it reads as follows: “107. Abetment of a thing - A person abets the doing of a thing, who: “First - Instigates any person to do that thing. 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. 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. 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. 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 facilitates the commission thereof, is said to aid the doing of that act.” 14. In a recent judgment of Hon’ble Apex Court in Kamalakar vs. State of Karnataka in Criminal Appeal No. 1485 of 2011 decided on 12.10.2023, the Court has explained the ingredients of Section 306 IPC. The Court has held as follows: “8.2. Section 306 IPC penalizes abetment of commission of suicide. To charge someone under this Section, the prosecution must prove that the accused played a role in the suicide. Specifically, the accused’s actions must align with one of the three criteria detailed in Section 107 IPC. This means the accused either encouraged the individual to take their life, conspired with others to ensure the person committed suicide, or acted in a way (or failed to act) which directly resulted in the person’s suicide. 8.3. In Ramesh Kumar vs. State of Chhattisgarh, the Court has analysed different meanings of “instigation.” The relevant Para of the said judgment is reproduced herein: “20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act.” To satisfy the requirement of instigation though 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. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 8.4. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 8.4. Essentials of Section 306 IPC were elucidated by Apex Court in the case of M. Mohan vs. State through Deputy Superintendent of Police, as under: “43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word “instigation” and “goading.” The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self-stem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 44. 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. 45. The intention of the legislature and the ratio of the cases decided by this Court are 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 this act must have been intended to push the deceased into such a position that he/she committed suicide.” 15. In order to constitute ‘instigation’ it must be shown that the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide. The words uttered by the accused must be suggestive of the consequence. There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. The accused must have intended or known that the deceased would commit suicide because of his actions or omission. There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. The accused must have intended or known that the deceased would commit suicide because of his actions or omission. 16. Perusal of FIR as well as statement of informant clearly shows that there are material contradictions. During investigation, neither any obscene video has been recovered nor informant has established any strong motive against the applicant even the informant has not established any link between the act of the accused and the act of committing suicide. 17. So far as recovery of Xerox copy of suicide note is concerned, the Apex Court in the case of Vijay vs. Union of India passed in Civil Appeal No. 4910 of 2023 decided on 29.11.2023, has specifically stated that circumstances under which secondary evidence pertaining to documents is acceptable are outlined in Section 65 of Evidence Act. It is possible to refer to Section 63 (2), which permits the admission of a document as secondary evidence, provided that its accuracy is verified. This includes copies created by mechanical processes such as photostats. Verifying the accuracy of a photostat copy is crucial when presenting it in court. A photostat copy of a document cannot be accepted as secondary evidence if it is presented without evidence of its accuracy, without a comparison with the original, or without verification that it is a true reproduction. Put more simply, a photostat copy’s admissibility depends on the other party’s acknowledgement or proof of its authenticity. Thus, a photostat copy of a document may only be introduced into evidence in situations where it is claimed and proven that the original document was once there but has since been lost, destroyed, or is in the possession of the other party and they refuse to produce it, among other situations listed in Section 65 of Evidence Act. In case of a conflict between secondary evidence and primary evidence, it is settled law that the primary evidence will prevail. 18. In case of a conflict between secondary evidence and primary evidence, it is settled law that the primary evidence will prevail. 18. Reverting back to the case in hand, even if the entire prosecution story as alleged in the impugned FIR is taken into consideration on its face value, the offence under Section 306 IPC would not be attracted as essential ingredients provided under Section 107 IPC for commission of such an offence are completely missing as nothing has been placed on record that the applicant has abetted or instigated the deceased for commission of such an offence. There is no cogent evidence that either by words or by any action, the applicant has forced the deceased to commit suicide. To constitute an offence under Section 306 IPC there has to have some kind of instigation from the side of accused persons that would drive the deceased to commit suicide. It also requires an active or direct act, which lead the deceased to commit suicide and this act must push the deceased into such a position that he seems no option except to annihilate his own life. 19. A plain reading of the above case law and applying it to the undisputed facts of the present case indicates that none of the ingredients are attracted to the case at hand. 20. Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Data Ram Vs. State of U.P. and others, 2018 (3) SCC 2 but without expressing any opinion on merits, this Court finds it to be a fit case for bail. 21. Let the applicant-Kuldeep Nishad @ Deepu Nishad, involved in the aforesaid case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions: (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC. (iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant. 22. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 23. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. 24. With the aforesaid observations/direction, the instant bail application is allowed.