Madhya Pradesh High Court
Heero @ Chhotu @ Devendra Singh Sikarwar vs The State Of Madhya Pradesh Thr on 29 August, 2017
1
CRR 551/2017 AFR
Heero @ Chhotu @ Devendra Singh Sikarwar vs. State of MP
29/08/2017
Shri Rajesh Shukla and Shri Virendra Singh Pal,
counsel for the applicant.
Shri Prakhar Dhengula, Public Prosecutor for the
State/respondent.
Heard finally.
This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 24-5-2017, passed by Special Judge [Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989], Gwalior in Special Sessions Trial No.58/2017, by which the charges under Sections 306 of I.P.C. read with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, Section 354(D) of IPC, Section 506 Part II of I.P.C. read with Section 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 509 of I.P.C. read with Section 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 201 of I.P.C. have been framed.
The necessary facts for the disposal of the present revision in short are that the complainant Rinku Saaiya lodged a report on 22-12-2016, alleging that he was in the house on 21-12-2016. He received a mobile call from his sister Puja who instructed him to go downstairs as some people are harassing the deceased Babita and are also knocking at the doors. The complainant went there and found that the deceased Babita was crying and the applicant and other co-accused persons were using filthy 2 and abusive language and were threatening that they would ruin the life of the deceased and as the deceased belongs to ''Koli'' caste, therefore, they would not be able to do anything against the applicant and also threatened that they would kill the entire family. Thereafter, all the four persons went away on the motor cycle. The complainant tried to pacify the deceased by saying that they would narrate the entire incident to the father in the evening. Thereafter, the complainant went upstairs as some work was going on. After sometime, when he went downstairs to see the deceased, he found that she had locked the door from inside, therefore, he went to the house of his uncle and called him. When they saw inside the room from a window, they found that the ceiling-fan was band. They broke open the door of the room and found that the deceased had committed suicide by hanging herself. The complainant called his sister and father and took the deceased to JA Hospital, Gwalior. His sister informed him that the applicant was constantly teasing her. He also used to chase her and was harassing her mentally.
On this report, the police registered the offence under Sections 294, 306, 354(A), 354(D), 506, 509, 34 of I.P.C. and under Section 3(2)(v) and 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter it would be referred to as "the Act, 1989''].
The Trial Court by order dated 24-5-2017, framed charges under Sections 306 of I.P.C. read with Section 3(2)(v) of the Act of 1989, Section 354(D) of I.P.C., Section 506 Part II I.P.C. read with Section 3(2)(v-a) of 3 the Act, 1989, Section 509 of I.P.C. read with Section 3(2)(v-a) of the Act, 1989 and under Section 201 of I.P.C.
It is submitted by the counsel for the applicant, that even if the entire allegations are accepted, it would be clear that there is nothing on record, which may suggest that the applicant, in any manner, had abetted the deceased to commit suicide.
Per contra, it is submitted by the counsel for the State that from the statement of Puja, it is clear that the applicant was constantly teasing and harassing her and had created such a situation, where the deceased was left with no other option, but to put an end to her life.
Heard the learned Counsel for the parties. The moot question is that even if the entire allegations are accepted as they are, then whether can it be said that the applicant has committed an offence of abetment of suicide.
Section 306 of I.P.C. reads as under :-
"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.
"Abetment" is defined under Section 107 of I.P.C. 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, 4 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 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. 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."
The Supreme Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605, while dealing with the term "instigation", held as under :-
"16................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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute 'instigation', a person 5 who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. The dictionary meaning of the word 'goad' is 'a thing that stimulates someone into action; provoke to action or reaction' ... to keep irritating or annoying somebody until he reacts...."
The Supreme Court in the case of Praveen Pradhan vs. State of Uttaranchal reported in (2012) 9 SCC 734 held as under :-
"17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh ((1991) 3 SCC 1), Surender v. State of Haryana ((2006) 12 SCC 375, Kishori Lal v. State of M.P.( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti Sree ((2009) 1 SCC 554)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under 6 Section 228 CrPC."
The Supreme Court in the case of Sanju @ Sanjay Singh Sengar vs. State of M.P. reported in (2002) 5 SCC 371 has held as under :-
"6. Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing."
Further, in para 12 of the judgment, it is held as under:
"The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation."
The Supreme Court in the case of Gangula Mohan Reddy vs. State of A.P. reported in (2010) I SCC 750 needs mentioned here. In which Hon'ble Apex Court has held that:
"abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing - Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained - In order to convict a person under section 306 IPC, there has to be a clear mens rea to commit offence - It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide - Also, reiterated, if it appears to Court that a victim committing suicide was hypersensitive to ordinary petulance, discord 7 and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty-
Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under Section 306 made out - Hence, appellant's conviction, held unsustainable".
In the case of State of W.B. vs. Orilal Jaiswal, reported in 1994 (1) SCC 73 , the Supreme Court has held as under:-
"This Court has cautioned 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 the life by committing suicide. If it appears 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 that accused charged of abetting the offence of suicide should be found guilty."
The Supreme Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 has held as under :-
"Abetment involves a mental process of 8 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. The intention of the Legislature is 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."
The Supreme Court in the case of Kishori Lal vs. State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:-
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime.
The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section
107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
9In the case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme Court has held as under:-
"12. 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 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.
13. 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.
14. The expression 'abetment' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is 10 to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause 'thirdly' of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.
15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows:
"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."
16. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC."
The Supreme Court in the case of Amit Kapur vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :
''35.The learned counsel appearing for the appellant has relied upon the judgment of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009) 16 SCC 605 to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the accused. It is not the stage for us to consider or evaluate or marshal the 11 records for the purposes of determining whether the offence under these provisions has been committed or not. It is a tentative view that the Court forms on the basis of record and documents annexed therewith. No doubt that the word "instigate" used in Section 107 IPC has been explained by this Court in Ramesh Kumar v. State of Chhattisgarh ((2001) 9 SCC 618) to say that where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, an instigation may have to be inferred. In other words, instigation has to be gathered from the circumstances of the case. All cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue existence. '' Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act.
In the present case, the police during investigation has recorded the statement of one Puja Koli, the elder sister of a friend of the deceased. According to this witness, on 21-12-2016 at about 3 P.M., she had a talk with the deceased who informed that the applicant has extended a threat to the deceased on mobile that she should immediately come to C.B.S. School to meet him, otherwise, he would come to her house. It was also informed by the deceased that the applicant is teasing her for the last several days and is always extending the 12 threat of spoiling the life of the deceased and to kill her family members. He has also extended the threat that in case if the deceased could not be of the applicant then he would not allow her to become of anybody else. Then this witness instructed the deceased to sit calmly in the house and assured that she will talk to her parents in this regard. Thereafter, she instructed her younger brother Rinku @ Golu to go and see that what is happening. Thereafter again, she enquired from the deceased that whether Rinku has come or not? After sometime, her brother Rinku informed that the deceased has committed suicide by hanging herself.
Similarly, Rinku has stated that after getting a phone call from her sister, when he went downstairs, he found that the applicant along with other co-accused persons was threatening and abusing the deceased. He had also extended the threat that he would kill the family members of the deceased.
Under these circumstances, it is clear that the applicant was teasing the deceased for the last several days and he was also extending the threat that he would spoil her life as well as the life of her family members. Thus, it appears that the applicant had created such a situation where the deceased was left with no other option but to put an end to her life. Under the facts and circumstances of the case, it cannot be said that the deceased was of hypersensitive nature. If a person is constantly under the threat to her life as well as life of her family members, only because of the fact that she happens to be a girl and is not acceding to the wishes of the applicant, then it can be inferred that the act of the 13 applicant amount to instigation or abetment of suicide Further, whether the applicant had any intention to instigate the deceased to commit suicide or not is a question of fact which can only be decided after testing the evidence by cross-examination.
At this stage, this Court is of the considered opinion that there is sufficient material available on record to infer that the applicant by his conduct had instigated the deceased to commit suicide.
Accordingly, it is held that in exercise of power under Section 482 of Cr.P.C. the F.I.R. as well as the consequential proceedings against the applicant cannot be quashed.
It is made clear that the observations in this order have been made to consider the submissions of the parties. The Trial Court must decide the trial without getting prejudiced by any of the observations made in this order as observations have been made after considering the material at this stage only while exercising power under Section 482 of CrPC.
Consequently, this application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge *MKB*