Rajeshbhai @ Rajubhai @ Bav Jentibhai ... vs State Of Gujarat on 7 October, 2022

[Cites 27, Cited by 0]

Gujarat High Court

Rajeshbhai @ Rajubhai @ Bav Jentibhai ... vs State Of Gujarat on 7 October, 2022

Bench: Vaibhavi D. Nanavati

   R/SCR.A/632/2017                               JUDGMENT DATED: 07/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 632 of 2017


  FOR APPROVAL AND SIGNATURE:


  HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

  ==========================================================

  1     Whether Reporters of Local Papers may be allowed
        to see the judgment ?

  2     To be referred to the Reporter or not ?

  3     Whether their Lordships wish to see the fair copy
        of the judgment ?

  4     Whether this case involves a substantial question
        of law as to the interpretation of the Constitution
        of India or any order made thereunder ?

  ==========================================================
        RAJESHBHAI @ RAJUBHAI @ BAV JENTIBHAI CHOVATIYA
                            Versus
                  STATE OF GUJARAT & 1 other(s)
  ==========================================================
  Appearance:
  MR KANDRAP H DHOLKIA(3704) for the Applicant(s) No. 1
  MR TUSHAR L SHETH(3920) for the Applicant(s) No. 1
  NOTICE SERVED BY DS for the Respondent(s) No. 2
  MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
  ==========================================================

CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                           Date : 07/10/2022

                           ORAL JUDGMENT

1. By way of present writ-application the writ-applicant Page 1 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 herein under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 is seeking quashing of the F.I.R being C.R. No.I-19 of 2015 registered with Bhayavadar Police Station for the offences punishable under Sec. 306 and 506(2) of the Indian Penal Code as well as the charge-sheet dated 22.10.2015 and the Sessions case on the file. The writ-

applicant herein also challenges the legality and validity of the order dated 01.09.2016 passed by the learned 7th Additional Sessions Judge, Rajkot at Dhoraji below Exh.6 i.e. an application for discharge preferred by the writ-

applicant herein which came to be rejected by the Court below.

2. The writ-applicant herein preferred Criminal Misc.

Application No.23654 of 2015 before this Court seeking quashing of FIR under Section 482 of the Code of Criminal Procedure which came to be withdrawn by the writ-applicant herein to avail alternative remedy by Page 2 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 preferring discharge application. The writ-applicant preferred an application for discharge below Ex.6 before the Sessions Court at Dhoraji in Sessions Case No.26 of 2015 which came to be rejected by the learned 7th Additional Sessions Judge, Rajkot at Dhoraji by order dated 1.9.2016.

3. The brief facts as stated by the writ-applicant, on 20.7.2015 accidental death came to be registered pertaining to suicide committed by the wife of the complainant at Rajkot Police.

3.1 On 22.7.2015, complainant - Atulbhai V Parmar lodged a complaint alleging that on 19.7.2015 all the family members were present at home around 10:30 when his wife - Sumitraben prepared tea for all of them and at around 10:45 his wife went to bathroom; thereafter she came out in the drawing room, at that time, she was about to vomit, so all members gathered near her -

Sumitraben and asked about the problem. At that time Page 3 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Sumitraben had informed that she had consumed Acid.

Thereafter Sumitraben was taken to Krishna Hospital, Upleta in the vehicle of neighbour Rameshbhai, thereafter she was taken to Rajkot at Sahyog Hospital for further treatment and on 20.7.2015 she passed away at 4:50 hours, at that time Rajkot Police Came and postmortem was carried out and the dead body was handed over to father-in-law.

3.2 It is alleged by the complainant herein that his friend Rajubhai @ Bav J Chovatiya was residing near his house; and Rajubhai was a Manager in a coal mine at Jharkhand, and Rajubhai had taken him to Jharkhand for service as a Supervisor, after about one and half month Rajubhai came to Bhayavadar for marriage of his elder brother.

3.3 It is further alleged that Rajubhai was visiting his home, when his wife was alone and had illicit relations with his wife. It is further alleged that neighbors came to Page 4 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 know about this fact when he came from Jarkhand, his mother informed about the relation between Rajubhai and his wife - Sumitraben, so he asked his wife Sumitraben, who admitted that there was relation and told the complainant that she was threatened by Rajubhai by saying that your husband and children will be killed. It is further alleged that therefore on 18.7.2015 the complainant talked with Rajubhai for not to keep relation.

It is further alleged that deceased Sumitraben was under

fear that she will be ill-famed and therefore she consumed Acid and committed suicide.

4. Criminal Case No.743 of 2015 came to be registered for the offences punishable under Sections 306 and 506(2) of the Indian Penal Code and the same is registered as Sessions Case No.26 of 2015 which is pending before the Court of learned Additional Sessions Judge, Rajot.

5. Mr. Tushar Sheth, the learned advocate appearing for the writ-applicant herein submitted that the FIR as Page 5 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 well as charge-sheet papers do not disclose as to how the writ-applicant can be held guilty for the offences punishable under Section 306 and 506(2) of the Indian Penal Code. The ingredients of the said provisions arraigned against the writ-applicant are conspicuously lacking and even if the FIR is accepted as it is only an offence under Section 506(2) of the Indian Penal Code can be said to be committed by the writ-applicant herein. The complaint which is registered against the writ-applicant under Section 306 of the Indian Penal Code is without any factual foundation and the prosecution to go against the writ-applicant would be nothing but abuse of process of the Court and that the Court below has committed an error in rejecting the application seeking discharge by the writ-applicant herein.

5.1 Mr. Sheth, the learned advocate submitted that it was due to harassment by the complainant i.e. her husband and his family members that deceased Page 6 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Sumitraben was compelled to commit suicide. The writ-

applicant herein was not having any relation with the deceased. The writ-applicant was friend of the complainant and residing opposite to the house of the complainant so the complainant was doubting the writ-

applicant herein.

5.2 Mr. Sheth, the learned advocate submitted that the complainant did not inform the police when the deceased was taken to Krishna Hospital, Upleta and FIR was also filed belatedly for the death which occurred on 20.7.2015 and the FIR came to be filed on 22.7.2015.

5.3 Mr. Sheth, the learned advocate submitted that Rajkot police also visited hospital after the death of the deceased on 20.7.2015 and at the same time no such allegations were leveled against the writ-applicant herein.

5.4 Mr. Sheth, the learned advocate submitted that as per the case of the prosecution neighbour including the Page 7 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 mother of the complainant came to know about the relation and it is the case of the complainant - applicant that there was talk between the husband and wife about the said issue. However, it is not the case of the complainant that the same resulted into quarrel. The deceased Sumitraben was first taken to Upleta at Krishna Hospital and thereafter she was taken to Rajkot at Sahyog Hospital for further treatment where she died during the treatment 20.7.2015.

5.5 As stated above, Mr. Sheth, the learned advocate reiterated that the FIR came to be filed only on 22.7.20215 with an intention to implicate the writ-

applicant herein, as a result of doubt against the writ-

applicant herein.

5.6 Mr. Sheth, the learned advocate submitted that Section 306 of the Indian Penal Code is not applicable in turn and submitted that abetment under Section 107 of the Indian Penal Code is defined to mean that person Page 8 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 abets the doing or a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment is attracted.

5.7 Mr. Sheth, the learned advocate placed reliance on the judgment dated 27.8.2008 passed in the Criminal Misc. Application No.2726 2008, wherein this Court had quashed the FIR registered under Section 306 of the Indian Penal Code 5.7 In support of his above submissions Mr. Sheth, the learned advocate relied on the following decisions :-

(a) In the case of Rajkumar Madhabhai Vegda and Anr.

vs. State of Gujarat 7 Ors., judgment dated 27.8.2008 in Page 9 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 the Criminal Misc. Application No.2726 of 2008 (para-2)

(b) In the case of Bhagvanbhai Jerambhai Mavani vs. State of Gujarat, reported in 2015 (0) AIJEL-HC 232974 (para 20 to 29 and 32)

(d) In the case of State of West Bengal vs. Indrajit Kundu and Ors., reported in (2019) 10 SCC 188.

(e) In the case of Mahendra Singh and Anr. vs. State of M.P. reported in 1995 Supp (3) SCC 731.

6. Ms. Maithili Mehta, the learned APP appearing for the respondent - State submitted that the complainant has categorically alleged that the writ-applicant has threatened the deceased to continue with the relationship, therefore provision of Section 107(3) of the Indian Penal Code would be attracted and, therefore, the writ-applicant Page 10 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 would be liable to be punished under Section 306 of the Indian Penal Code.

7. Ms. Mehta, the learned APP also placed reliance on the statement of the brother of the complainant Arvindbhai dated 22.7.2015 which is duly produced at page-33/A. The complainant and his brother both revealed that the deceased was threatened. Ms. Mehta, the learned APP submitted that the charge-sheet also reveals that the accused and deceased Sumitraben had illicit relationship and that the writ-applicant had coerced the deceased Sumitraben by threatening that if Sumitraben were not to continue with the relationship with the accused, the writ-

applicant would kill her husband and the children which resulted in committing suicide on 19.7.2015 by taking acid in the bathroom.

8. Though the respondent No.2 served has not appeared.

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022

9. Position of law :-

(a) In the case of Mahendra Singh and Anr. vs. State of M.P. reported in 1995 Supp (3) SCC 731, Paragraphs 1 to 3 read thus :-

"1. Criminal Appeal No. 743 of 1989 is filed by Mahendra Singh, the husband and his mother Radhabai the mother-in-law of the deceased Khema Bai. The appellant in Criminal Appeal No. 402 of 1989 is Gayatri Bai the sister-in-law of the husband of the deceased Khemabai. These three appellants stand convicted under Section 306 IPC whereunder they have been sentenced to three years' R. I. each. In so far as the appellants in Criminal Appeal No. 743 of 1989 are concerned, they have undergone the sentence imposed on them. Sentence of the appellant in Criminal Appeal No. 402 of 1989 stands suspended under orders of this Court after the appellant has undergone sentence barely of about ten days. The charge under Section 306 IPC is basically based on the dying declaration of the deceased which when translated reads as follows :-

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to Page 12 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

2. Learned counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 IPC, under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306 IPC, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Page 13 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Section 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to the acquitted of the charge.

3. 2. It was, however, brought to our notice by learned Counsel for the State that since the occurrence took place on 14-3-1984, Section 498A I.P.C. had priory on 25-12-1983 been brought on the statute book and that the appellant could well have been charged under the said provision which may now be applied in substitution. That appears to be so. But at this distance of time, we think it would be imprudent to substitute the charge and cull out incidence of cruelty inflicted on the deceased by the husband or relatives of the husband and determine whether any wilful conduct is attributed to the appellants which would likely to drive the deceased to commit suicide or to cause grave injury to her (whether physically or mentally) Prejudice would, in our view, be writ large if we involve the appellants under Section 498- A I.P.C. in substitution. Even otherwise, substantial justice has been done when the husband and his mother, appellants in Criminal Appeal No. 743 of 1989 have undergone the sentence imposed on them. Their appeal would stand disposed of as infructuous. The sister-in-law also has undergone some sentence, though not much. The appeal of the sister-in-law would therefore stand allowed and she is acquitted of the charge. She is on bail. The Page 14 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 bail bonds stands cancelled."

(b) In the case of Rajkumar Madhabhai Vegda and Anr.

vs. State of Gujarat 7 Ors., judgment dated 27.8.2008 in the Criminal Misc. Application No.2726 of 2008, Paragraphs 11 to 17 read thus :-

"11.With a view to properly appreciate the controversy involved in the present case, it would be necessary to refer to the contents of the First Information Report. The allegations made in the First Information Report are to the effect that the deceased Mulshankarbhai who was the elder brother of the first informant, was working as the sole agent of Sandesh daily and press representative at Jetpur since the last fifteen years. His work involved sale of Sandesh newspapers and getting subscriptions as well as covering newsworthy events in Jetpur City Taluka and preparing news reports and forwarding them. The deceased used to live with his family and work from his office viz. Gayatri News Agency and also used to carry on business of Girnar Transport.

On 25th February, 2008, when the first informant was at his residence at Jetalsar, at about 3 O'clock, in the afternoon, a person called Aziz Bodhani who had a shop Page 15 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 by the name of Creative Offset next to the office of his brother Mulshankar, called him up on telephone and informed him that his elder brother Mulshanker had committed suicide in his office by hanging himself and that his dead body was hanging there. Thereafter, he immediately proceeded to his brother's office on a motorcycle and saw a crowd outside the office and at that time, Pravinbhai Goswami, who works at his brother's office, and Shaileshbhai and his sister in-law Gitaben and Sanadbhai Mehta, Aziz Bodhani, Deepak Joshi and both his brothers and Pareshbhai Sujitbhai were also present there. In the presence of all those persons, he raised the closed shutter of the office and opened it and saw that inside the office, in a glass cabin, his brother Mulshankar was hanging in a dead condition from a rope secured to a hook on the ceiling. Hence, he, Deepak Joshi and Azizbhai immediately took down the dead body and upon the arrival of the ambulance, locked the office and took the dead body of his brother in the ambulance to the Jetpur Government Hospital and there, the police officer along with his staff came and prepared the papers, got the Post mortem examination carried out and upon arrival of his parents and son of deceased Mulubhai, the dead body was taken for performing the last rites. Till then the body was kept at the hospital. In the meanwhile, the scene of offence panchnama was drawn and inside the office, on the table in the glass cabin, a note in the Page 16 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 handwriting of his brother was found on the letter-pad of Gayatri News Agency wherein his brother had put his stamp and written the date 25.2.08 and had signed in his handwriting. That the first informant recognized the said signature and handwriting. They had read the note wherein it was written that the sub-agents here had got his cheques returned, consequently his cheques to Sandesh had also been returned, and Sandesh was pressurizing him to pass the same and were telling him to lodge criminal complaints and that, he was tired of telling the local agents and nobody had made payments in time, hence, he had to take this step. Now, they should close the newspaper business and if the subscriptions are received, they should be given to the paper. A large number of monthly bills of agents are unpaid and nobody pays on time, hence, he was fed up. Also Rajesh Madhabhai Vegda, Sanjay Vala and Kishore Maru of Jetpur were threatening to kill him, and from that day, he was under

tension.

The first informant has further stated that, on the basis of the note, he was of the belief that the deceased was under tension on account of the amount towards bills of Sandesh Newspapers remaining unpaid and because Rajesh Madhabhai Vegda, Sanjay Vala and Kishore Maru, residents of Jetpur, all three of them often used to threaten to kill his brother and his family members as Page 17 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 well as to blackmail him. Moreover, these three persons and others had formed the Jetpur City and Taluka Newspapers Association, but as they were indulging in activities which were contrary to the duties of a press reporter and were blackmailing the common public, his brother and Dilipbhai Tajwani of Jai Hind, Sureshbhai Mehta of Gujarat Samachar, Jitubhai Moghwani of Jansatta, Nanubhai Oza of Atul Newspapers, had got together and issued a public notice. Since then, these three persons had harassed his brother and often used to give threats to kill him and his family members. Hence, on account of fear of these three persons, his brother had committed suicide by hanging himself.

12.In the background of the facts noted above and the contents of the First Information Report, what is required to be examined is, as to whether on the allegations made in the First Information Report, the offence under Section 306 of the Indian Penal Code is made out.

13.This Court, in the case of State of Gujarat v.

Pradyuman Ramanlal Mehta, 1998[2] GLH 904, has interpreted the provisions of Section 306 IPC and has held as follows :

"[4] Section 306 of the Indian Penal Code reads as under :

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 "306. Abetment of suicide. - 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."

[5] The meaning of the word "abetment" emerges from Section 107, which reads as under :

"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 a 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.

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Illustration :

A, a public officer, is authorised 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 facilitates the commission thereof, is said to aid the doing of that act."

[6] In the context of the facts of the present case, where defamatory articles are said to have been published in a daily of which the respondent No.2 was the editor, one has to examine whether the suicide said to have been committed by Narsinhbhai on reading of the articles published which were defamatory of him would amount to abetment by the respondents to enable Narsinhbhai to commit suicide. In the present case, "doing of a thing" is the suicide and the question is, can it be said that by publishing the articles the respondents had abetted that doing of the thing i.e. Suicide? For that purpose, firstly one Page 20 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 has to examine whether there was any instigation by the respondents to Narsinhbhai to commit suicide, i.e. "to do that thing" as per the language of Section 107 of the IPC. Furthermore, it has to be seen whether the respondents had engaged in any conspiracy for the doing of that thing namely for making Narsinhbhai commit suicide; and finally, whether the respondents or any of them intentionally aided, by any act or illegal omission, the commission of suicide by Narsinhbhai.

The word "abetment" occurring in Section 306 of the IPC is to be construed in the light of its meaning occurring in Section 107 of the IPC because when the same statute gives a meaning to the expression, then that expression should be given that meaning in the provisions appearing therein, unless a contrary intention is expressed or necessarily implied.

[7] Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. ... ... ... "

14.Examining the facts of the present case in the light of the aforesaid statutory provisions, what is alleged against the present petitioners in the First Information Report is that the petitioners used to threaten the Page 21 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 deceased that they would kill him and his family members, and had also threatened to blackmail him with a view to coerce him into joining their association. As is apparent from the contents of the First Information Report, the same is based upon the suicide note alleged to have been found in the cabin of the first informant's brother's office. From the contents of the suicide note as reproduced in the first information report, it is apparent that the main allegations are levelled against the sub-agents of Sandesh newspaper as well as Sandesh newspaper on the ground that the sub-agents were not making payments regularly and that the cheques issued by them had been dishonoured, and consequently, the cheques issued by the deceased to Sandesh newspaper had also been dishonoured. That Sandesh was pressurizing the deceased for making payments and was asking him to lodge criminal complaints in respect of dishonour of cheques and on account of the pressures associated with the aforesaid, the deceased was fed up and had accordingly taken the extreme step of committing suicide. Insofar as the petitioners are concerned the allegations are to the effect that they were threatening to kill him and from that day, the deceased was under tension. A plain reading of the suicide note as reproduced in the first information report, would clearly show that the deceased was Page 22 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 under great stress and depressed. One plausible reason could be that as the newspaper agents were not making payments, the deceased was in dire straits insofar as his financial condition is concerned, and to add to his woes, Sandesh was also pressing for recovery of dues. Taking the allegations against the petitioners at their face value, the same could only have aggravated the mental condition of the deceased, nonetheless, it can in no manner be said that the suicide by the deceased was a direct result of the alleged acts of the petitioners.

15.The next point that requires consideration is as to whether on the aforesaid allegations, the petitioners can be said to have abetted the deceased in committing suicide. As held by this Court in the decision referred to hereinabove, abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. Considering the nature of the allegations levelled against the petitioners it is difficult to come to even a prima facie view that the alleged acts of the petitioners were enough to instigate the deceased to commit suicide. Besides as held by the Supreme Court in the case of Sanju v. State of M.P., (2002) 5 SCC 371, presence of mens rea is a necessary concomitant of instigation. On the facts of the present case, there is nothing in the Page 23 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 first information report to indicate that the requisite mens rea is present on the part of the petitioners. The contents of the suicide note do not in any way make out the offence against the petitioners.

16.In the case of S.G.Munia & ors. v. State of Gujarat, 2002[3] GLH 417, this Court has held that, to constitute an offence under Section 306 of the Indian Penal Code, the most essential ingredient is that there must be prima facie offence to even remotely suggest that the accused persons intended the consequences of the act i.e. the death of the person. In the facts of the present case, even if the contents of the suicide note per se are accepted as true, without challenging the veracity of the same, the same does not involve the petitioners in the offence punishable under Section 306 of the IPC.

17.It has been contended on behalf of the respondent No.2 - first informant that the inherent power should not be exercised to stifle the legitimate prosecution, and that, the High Court being the highest Court of a State, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of Page 24 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 magnitude and cannot be seen in their true perspective without sufficient material. Reliance is placed upon the decision of the Supreme Court in the case of Didigam Bikshapathi and Another v. State of A. P. 2002 ALL MR (Cri) 870 (S.C.). There can be no quarrel with the proposition laid down in the aforesaid decision. However, the said decision does not lay down any absolute proposition that in no case the first information report can be quashed. The Court has held that the scope of exercise of power under Section 482 of the Code, and the categories of cases where the High Court may exercise its powers under it relating to cognizable offences to prevent the abuse of process of any court or otherwise to secure the ends of justice have been set out by the Supreme Court in the case of State of Haryana v. Bhajanlal (1992 Supp (1) SCC

335). The illustrative categories indicated are as follows:

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying Page 25 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted Page 26 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

The facts of the present case are therefore, required to be examined in the light of the aforesaid principles laid down by the Apex Court to ascertain as to whether the same falls within the ambit of any of the categories enumerated therein. Looking to the allegations made in the first information report even if they are taken at their face value and accepted in their entirety, in the opinion of this Court they do not prima facie constitute any offence under section 306 IPC, as alleged nor make out a case against the petitioners-accused."

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(c) In the case of Sanju alias Sanjay Singh Sengar vs. State of M.P. reported in (2002) 5 SCC 371, Paragraphs 8 to 14 read thus :-

"8. In Swamy Prahaladdas v. State of M.P. & Anr. , 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die' . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

9. In Mahendra Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads as under:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

10. This Court, considering the definition of 'abetment' under Section 107 I.P.C., found that the charge and Page 28 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

11. In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:

"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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 Page 29 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 accused charged for abetting the offence of suicide should be found guilty."

12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot Page 30 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.

13. The next and most important material is the suicide note left by the deceased. The translated copy is annexed to this appeal as annexure P-1. It is extracted:

"SUICIDE NOTE Danik Bhaskar 581 South Civil Lines Jabalpur.

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Agent Name Sengar New Agency Place Goshalpur No. of copies 409 Date Name of the person who prepared label Gosalpur Sengar has threatned to report under Dowery demand and threatned to involve family members due to this I am writing in my full senses that Sanjay Sangar is responsible for my death. Sanjay Sangar also Mukraj commander Loota Tha Sanjay ki. Sengar New Agency Gosalpur I was threatened therefore I am dying Sangar Gosalpur My name Chander Bhushan Singh Goutam Chander Bhushan Singh Goutam Babloo Goutam In my senses Sengar responsible for my death.

My moti Darling my moti. You look after my Chukho. My darling Moti Neelam Sengar @ Chander Bhushan Singh Goutam Gandhigram Budghagar.

Sengar is responsible for my death Sanjay Sengar is responsible for my death Sanjay Sengar is responsible for my death Chander Bhushan Singh Goutam Gandhigram Budhagar".

14. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt. Neelam Sengar. He was a Page 32 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 frustrated man. Reading of the suicide note will clearly suggest that such a note is not a handy work of a man with sound mind and sense. Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161 Cr.P.C. before the Investigation Officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26th July, 1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25th July, 1998 and if the deceased came back to the house again on 26th July, 1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken pace on 25th July, 1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of 'abetment' are totally absent in the instant case for an offence under Section 306 I.P.C. It is in the statement of the wife that the deceased always remained in a drunkened condition. It is a common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25th July, 1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the Page 33 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 case into consideration, it will lead to irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death."

(d) In the case of Bhagvanbhai Jerambhai Mavani vs. State of Gujarat, reported in 2015 (0) AIJEL-HC 232974, Paragraphs 20 to 29 and 32 read thus :-

"20. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512, after considering various earlier judgments in para 15 observed that, "15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action Page 34 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."

"16. In order to bring a case within the purview of Section 306 of 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."

21. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 and 13 reads thus:

"12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing Page 35 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 is required before a person can be said to be abetting the commission of offence under Section 306 IPC.

13. In State of W. B. v. Orilal Jaiswal this Court has observed that the courts 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 the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such petulance, discord and differences were not expected to induce a similarly circumstances 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."

22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1 SCC 750 the Supreme Court while interpreting Section 306 IPC held that:

"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a Page 36 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens tea to commit the offence."

23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9 SCC 618. the Supreme Court held that "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."

24. In Sanju alias Sanjay v. State of M.P., (2002) 5 SCC Page 37 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022

371. the deceased committed suicide on 27.7.1998. whereas, the alleged quarrel had taken place on 25.7.1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27.7.1998 would itself clearly point out that it was not the direct result of the quarrel taken place on 25.7.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die.

25. Taking note of various earlier judgments, in M. Mohan u. State Represented the Deputy Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that "Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section

306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide."

26. On a close reading of the above provisions of the IPC, and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case under Section 306 IPC, there should be clear mensrea to commit the offence under this Section and there should be direct Page 38 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 or active act by the accused, which led the deceased to commit suicide, that is to say that there must be some evidence of "instigation", "cooperation" or "initial assistance" by the accused to commit suicide by the victim/deceased.

27. In Madhavrao Jiwajirao Scindia v.

Sambhajirao Chandrajirao Angre, (1988) 1 SCC 692 the Supreme Court observed vide Para 7 that:

"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 It was a proposition relating to criminal prosecution.

28. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628. the Supreme Court quashed the proceedings under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings.

29. Accepting the allegations made against the applicants by the prosecution as it is, they do not constitute the offence of abetment. I am conscious of the fact that five persons of one family lost their lives on account of drastic step taken by them for no reason. It is very difficult to understand the mental state of mind of such persons who take an extreme step of putting an end to their life voluntarily by committing suicide.

32. Commission of suicide in the State is at rampage. Everyday, cases are reported. Sometimes, it could be a student or an estranged wife or a frustrated or mentally disturbed husband or it could be a terminally ill person fedup with the ailment etc. Life is precious and should not be allowed to be lost in this manner. The State owes an obligation to see that its subjects do not take the extreme step of committing suicide for any reason. In such Page 40 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 circumstances, the State Government should also seriously consider evolving some action plan or strategies as referred to above."

(e) In the case of State of West Bengal vs. Indrajit Kundu and Ors., reported in (2019) 10 SCC 188, Paragraphs 6 to 17 read thus :-

"(6.) By the impugned order, the High Court by recording a finding that terming the deceased as a call-girl, there was no utterance which can be interpreted to be an act of instigating, goading or solicitation or insinuation, the deceased to commit suicide. By referring to the case law decided by this Court wherein similar utterances like, to go and die does not constitute an offence for abetment, allowed the application filed by the respondents. It is observed in the order that the act or conduct of the accused, however insulting and abusive, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts, the consequence of suicide. By discussing the case law on the subject, the High Court allowed the application by setting aside the order of the Trial Court and discharged the respondents- accused from the charge.

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 (7.) We have heard Sri Suhaan Mukerji, learned counsel appearing for the State of West Bengal and Sri Pijush Roy, learned counsel appearing for respondents.

(8.) In this appeal mainly it is contended by the learned counsel for the appellant-State that the de facto complainant has appointed first respondent as an English teacher to improve the English of the deceased victim. The victim used to visit the house of accused No.1 and developed intimacy and relationship. It is submitted that on 05.03.2004, when the victim visited the accused for finalizing the date of marriage, respondent Nos. 2 and 3 who are parents of accused No.1 have shouted and called the victim a call-girl. The victim was disturbed and she returned home and her sister tried to console her by telling her that they will speak to the accused so that their marriage would take place. It is submitted that on next day i.e. 06.03.2004, she committed suicide by hanging. It is submitted that from suicide notes, it is clear that respondents who are the accused are responsible for suicide of the victim girl. It is submitted that by their conduct and utterances they have abetted the crime, as such they were rightly charged for the offence under Section 306/34 IPC. It is submitted that there is sufficient material to frame charge against the respondents. In spite of the same, without considering the material on record, the High Court has allowed the application filed by the respondents. The learned counsel for the State in support Page 42 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 of his arguments placed reliance on the judgment in the cases of Soma Chakravarty vs. State, 2007 5 SCC 403 and Union of India vs. Prafulla Kumar Samal, 1979 3 SCC 4.

(9.) On the other hand, in response, learned counsel appearing for the accused-respondents submitted that during the pendency of this appeal, the second respondent passed away, as such appeal stands abated so far as he is concerned. Further, it is stated that as there is no material to frame charge against the respondents for offence under Section 306/34 IPC, the High Court by well-reasoned order has allowed their application and no grounds to interfere with the same.

(10.) Having heard learned counsel on both the sides, we have perused the impugned order passed by the High Court and other material placed on record.

(11.) From the material placed on record, it is clear that respondents are sought to be proceeded for charge under Section 306/34 mainly relying on the suicide letters written by the deceased girl and the statements recorded during the investigation. Even according to the case of de facto complainant, respondent Nos. 2 and 3 who are parents of first respondent shouted at the deceased girl calling her a call-girl. This happened on 05.03.2004 and the deceased girl committed suicide on 06.03.2004. By considering the material placed on record, we are also of the view that the present case does not present any Page 43 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 picture of abetment allegedly committed by respondents. The suicide committed by the victim cannot be said to be the result of any action on part of respondents nor can it be said that commission of suicide by the victim was the only course open to her due to action of the respondents. There was no goading or solicitation or insinuation by any of the respondents to the victim to commit suicide. In the case of Swamy Prahaladdas vs. State of M.P. and Anr., 1995 Supp3 SCC 438 this Court while considering utterances like to go and die during the quarrel between husband and wife, uttered by husband held that utterances of such words are not direct cause for committing suicide. In such circumstances, in the aforesaid judgment this Court held that Sessions Judge erred in summoning the appellant to face the trial and quashed the proceedings.

(12.) In the judgment in the case of Ramesh Kumar vs. State of Chhattisgarh, 2001 9 SCC 618 this Court has considered the scope of Section 306 and the ingredients which are essential for abetment as set out in Section 107 IPC. While interpreting the word instigation , it is held in paragraph 20 as under:

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 Page 44 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 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.

(13.) Similarly in the judgment in the case of Sanju Alias Sanjay Singh Sengar vs. State of M.P., 2002 5 SCC 371 when any quarrel which has taken place between husband and wife in which husband has stated to have told the deceased to go and die , this Court has held that the suicide committed two days thereafter was not proximate to the quarrel though the deceased was named in the suicide note and that the suicide was not the direct result of quarrel when the appellant used abusive language and told the deceased to go and die.

(14) Judgments referred above support the case of respondents, except stating that on 05.03.2004 when the deceased went to the premises of first respondent, his parents who are respondent Nos. 2 and 3 addressed her as Page 45 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 a call-girl. At the same time by applying the judgments referred above we are of the view that such material is not sufficient to proceed with the trial by framing charge of offence under Section 306/34 IPC. It is also clear from the material that there was no goading or solicitation or insinuation by any of the respondents to the victim to commit suicide.

(15.) Learned counsel appearing for the appellant-State has placed reliance on the judgment in the case of Soma Chakravarty (supra), wherein this Court has held that when there is material to show that accused might have committed offence it can frame charge and the probative value of the material on record cannot be gone into at the stage, before the Trial Court.

(16.) Reliance is placed on the judgment in the case of Union of India vs Prafulla Kumar Samal (supra), where this Court has held that the Judge while considering the question of framing the charges has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(17.) The judgment relied on by learned counsel for the State in the case of Chitresh Kumar Chopra vs. State (NCT) of Delhi, 2009 16 SCC 605 this Court has held that where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was Page 46 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 left with no other option except to commit suicide, an instigation may be inferred. To draw the inference of instigation it all depends on facts and circumstances of the case, whether the acts committed by the accused will constitute direct or indirect act of incitement to the commission of suicide is a matter which is required to be considered in facts and circumstances of each case. As such we are of the view that the judgments relied on by the learned counsel for the State would not assist in supporting his arguments."

10. In the facts of the present case, deceased Sumitraben consumed acid on 19.7.2015. She was taken to Krishna Hospital, Upleta and thereafter to Sahyog Hospital, Rajkot, where she scummed to death on 20.7.2015. Initially complaint of accidental death came to be registered by the Rajkot Police. However, after a period of two days on 22.7.2015 the complainant - Atulbhai lodged complaint against the writ-applicant herein alleging offences punishable under Sections 306 and 506(2) of the Indian Penal Code. The said FIR culminated into the charge-sheet on 22.10.2015. The writ-applicant herein approached this Page 47 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Court by filing Special Criminal Application. However, the writ-applicant herein was relegated avail statutory remedy by filing a discharge application under Section 227 of the Criminal Procedure Code. The said application came to be rejected by the learned Session Court on taking into consideration the hearsay statement of Valien that she and other witnesses were aware that the accused visited the house of deceased Sumitraben and thereafter Sumitraben committed suicide. It is further held by the learned Sessions Court that all the statements are sufficient evidence against the accused for the offence punishable under Section 306 of the Indian Penal Code.

10.1 To constitute an offence punishable under Section 306 and 506(2) of the Indian Penal Code it is essential that the ingredients of Section 107 of the Indian Penal Code are satisfied. Section 306 of the Indian Penal Code reads tthus :-

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 "SECTION 306 : Abetment of suicide 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."

Under the aforesaid provision to constitute an offence under Section 306 of the Indian Penal Code the prosecution has to establish;

(i) That a person committed suicide and

(ii) Such suicide was abetted by the accused.

In other words, an offence under Section 306 of the Indian Penal Code would stand only if there is abetment for the commission of the said crime. The essential ingredients of abetment as stated in Section 107 of the Indian Penal Code reads thus :-

"SECTION 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 Page 49 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 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."

While considering the allegation of offence under Section 306 of the Indian Penal Code, it is required to be considered whether the abettor intentionally instigated with common intention or aided the commission of suicide.

10.2 In case there is no evidence to show that the abettor intended that the suicide should be committed then no offence under Section 306 of the Indian Penal Code is made out. The evidence on record is required to be examined for limited purpose to see whether the essential elements of offence are made out or not.

It is the case of the prosecution that the case of the writ-applicant falls under Section 107(3) of the Indian Penal Code.

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R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 Abetment by instigation In view of this Court, a person who stands by silently and does not actively participate in the commission of the offence is not an abettor. It is a matter of fact if there is any instigation, there cannot be a one-

size-fits-all criterion for determining whether or not there was incitement. In the absence of direct proof of instigation, a conclusion about whether or not there was instigation must be drawn from the circumstances of the case on hand.

In the facts of the present case, admittedly even as per the case of the complainant, the deceased Sumitraben was in relationship with the accused and that the accused also happens to be a friend of the complainant. While the complainant was in Jharkhand, the accused and deceased Sumitraben were having relationship and that both the deceased - Sumitraben and accused were in contact with each other without the knowledge of the family members Page 51 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 of the complainant. The accused visited deceased Sumitraben's residence which was also known to the neighbours. Deceased Sumitraben also told the complainant about the relationship with the accused, as stated by the complainant that she sought to be pardoned and the complainant had pardoned her. It was further stated that the accused had threatened deceased Sumitraben and forced her to continue relationship with him and the deceased Sumitraben was worried about her reputation. According to the complainant, it is because of the threat of the accused that his wife committed suicide.

It is pertinent to note that the aforesaid is not corroborated by any evidence on record. There is nothing on record to show that the accused threatened deceased Sumitraben. It is in fact the complainant who threatened the accused.

The statements which are recorded by the witness are general in nature. It is stated by all the witnesses that Page 52 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 they were aware about the affair of the deceased Sumitraben and the accused and that they heard the reason of committing suicide by deceased Sumitraben was her illicit relationship with the accused and the accused threatened her to kill her husband and children.

10.3 The accused cannot be said to be the cause of commission of suicide by deceased Sumitraben. Further after consumption of acid deceased Sumitraben was taken to Krishna Hospital, Upleta on 19.7.2015 and then shifted to Sahyog Hospital at Rajkot on 20.7.2015 and thereafter she succumbed to death on 20.7.2015. It was after a period of two days that aforesaid complaint came to be filed by the complainant. Between 19.7.2015 to 20.7.2015 the complainant did not report to the police with regard to the writ-applicant's role. The complaint and charge-

sheet lacks demonstrating active role or direct act of the writ-applicant herein which led deceased Sumitraben to commit suicide and the deceased having left with no Page 53 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 option and that the act of the writ-applicant was such an act which intended the deceased to such a position that the deceased was forced to commit suicide. Even if the case of the complainant is taken as it is, it would at best be a case of threat, however the same cannot be held tantamount to commission of an offence under Section 306 of the Indian Penal Code. The word 'instigate' literally means to goad, urge forward, provoke, incite or encourage to do an act and the person is said to instigate another person when he actively suggests or stimulate another person to act by any means or language, direct or indirect, whether he takes the form of express solicitation or insinuation or encouragement.

11. In absence of aforesaid ingredients to invoke Section 306 of the Indian Penal Code, this Court deems it fit to exercise extraordinary powers under Article 226 and 227 of the Constitution of Indian and consider it fit to exercise its extraordinary jurisdiction and accordingly the Page 54 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022 R/SCR.A/632/2017 JUDGMENT DATED: 07/10/2022 impugned F.I.R being C.R. No.I-19 of 2015 registered with Bhayavadar Police Station which has culminated into charge-sheet dated 22.10.2015 and the Sessions case on the file are quashed qua Section 306 of the Indian Penal Code.

12. The present writ-application is accordingly allowed.

Rule is made absolute to the aforesaid extent.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 55 of 55 Downloaded on : Sun Dec 25 03:32:43 IST 2022

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