Madhya Pradesh High Court
Dharmendra Chouhan vs The State Of Madhya Pradesh on 23 September, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
Criminal Revision No.4648/2019
Dharmendra Chouhan & others
Vs
The State of Madhya Pradesh & another
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Shri Kapil Sharma, learned counsel for the petitioners.
Shri Santosh Yadav, learned P.L. for the respondent-
State.
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ORDER
(23 .09.2020) The instant Revision Petition has been preferred by the petitioners against the order dated 16.07.2019 in Session Trial No.53/2019 passed by learned Xth Upper Sessions Judge, Bhopal, District-Bhopal framing the charge under Section 306 of the IPC against the petitioners.
2. As per prosecution case, on the basis of marg intimation report, the police registered the FIR stating therein that on account of dispute occurred on the eve of 'Ganesh Utsav', the deceased-Sonu Niware lodged a complaint against the petitioners. Being annoyed, the petitioners were 2 Cr.R.No.4648/2019 harassing the deceased which led him to commit suicide by consuming poisonous substance on 14.09.2011. After completing investigation, the police has filed the charge- sheet before the competent Court.
3. Learned counsel for the petitioners submits that the trial Court erred in framing the charge under Section 306 of IPC whereas entire charge-sheet does not show any substance to frame the aforesaid charge against the petitioners. Even if the entire version of prosecution is taken into consideration, no offence is made out against the petitioners. As per prosecution, the incident was occurred on 14.09.2011 whereas the FIR was registered on 29.12.2011 after passing more than three months period from the incident. Therefore, it is apparent that a false case has been registered against the petitioners. He further submits that there is material contradictions in the police statements of witnesses. The petitioners have been falsely implicated in the case on the instance of family members of deceased on the basis of previous enmity. The version of FIR does not constitute the offence under Section 306 of IPC as no ingredients are satisfied of 3 Cr.R.No.4648/2019 Section 107 of IPC. It is further submitted that prosecution case is based upon the allegation of threatening to deceased by the petitioners but the prosecution has not collected any phone calls record or other material to show the credibility of such allegation. Deceased never filed any complaint about threatening alleged to be given by the petitioners prior to this incident. Further, deceased was died during treatment but the prosecution has not obtained any dying declaration or statement. The statements of witnesses have also been recorded delayed which fatal to the prosecution case. In support of his contention he relied on the pronouncements passed by Hon'ble Supreme Court as well as this Court, same are mentioned as under :-
1. S.S. Chheena Vs. Vijay Kumar Mahajan & Anr. reported in (2010) 12 SCC 190 passed by Hon'ble Supreme Court.
2. Sanju Vs. State of M.P. reported in (2002) 5 SCC 371 passed by Hon'ble the Supreme Court.
3. Ritu Choubey Vs. State of M.P. & Others in Cr.R.No.3574/2018 dated 26.06.2019 passed by this Court.
4. Banti @ Satyaprakash Vs. State of M.P. in M.Cr.C.No.4567/2019 dated 29.04.2019 passed by this High Court.
5. Sanjay Singh Vs, State of M.P. in Cr.R.No. 5892/2018 dated 02.01.2019 passed by this High Court.4 Cr.R.No.4648/2019
6. Naina Gohar & Others Vs. State of M.P. in Cr.R.No.4071/2019 dated 16.03.2020 passed by this High Court.
With the aforesaid, he prays for allowing this revision petition.
4. On the other hand, learned Panel Lawyer for the respondent-State opposes the petition submitting that there is sufficient material available in the charge-sheet for framing the aforesaid charge and thus the trial Court did not commit any error in framing the said charge against the petitioners. He submits that defence of petitioners may not be considered at this stage and this revision petition may not be allowed at this initial stage of trial, the petitioners may raise all the grounds before the trial Court at appropriate stage of trial. With the aforesaid, he prays for dismissal of present petition.
5. Heard both the parties and perused the charge- sheet.
6. Before embarking on the facts of the case, it would be necessary to consider the legal aspects first. Since, by way of filing this revision petition, the petitioners have challenged the charge framed by the 5 Cr.R.No.4648/2019 learned trial Court, therefore, I would prefer to deal with the provision of Section 227 of Code of Criminal Procedure, 1973, the same reads as under:
"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
7. If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure, 1973, comes into role, provision is also quoted as under:
"228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."6 Cr.R.No.4648/2019
8. The Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well- settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
9. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 7 Cr.R.No.4648/2019
366), the Hon'ble Supreme Court again has held as under:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."8 Cr.R.No.4648/2019
10. Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
11. The Hon'ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in (2000) 2 SCC 57, has also held as under:-
"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court 9 Cr.R.No.4648/2019 posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(emphasis supplied)
12. In Asian Resurfacing of Road Agency Pvt.Ltd and Anr. v. Central Bureau of Investigation reported in (2018) 16 SCC 299, wherein the Hon'ble Supreme Court has held that petitions challenging the charge should be entertained in rare and rarest of case only 10 Cr.R.No.4648/2019 to correct the pattern error of jurisdiction and not to re- appreciate the matter.
13. Therefore, it is manifest that while framing the charges, the Court is required to evaluate the material and documents on record with a view to find out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents annexed with the charge-sheet. The petition challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
14. Further, on careful reading of the charge, it appears that the Court has framed the charge of offence under Section 306 of IPC against all the petitioners. The question in the present case is as to whether considering and accepting the entire material as correct and true, a 11 Cr.R.No.4648/2019 prime facie case for offence under Section 306 of IPC is made out against the petitioners ?
15. At this juncture, it is appropriate to read the provisions of Section 306 and 107 of IPC, same are reproduced hereinunder:-
"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 extent to ten years, and shall also be liable to fine."
"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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing.'' Explanation 1 A person who, by willful misrepresentation, or by willful 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 set 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 facilitate the commission thereof, is said to aid the doing of that act."12 Cr.R.No.4648/2019
16. On perusal of aforesaid provisions, making liable accused for the offence punishable under Section 306 of IPC, it is duty of the prosecution to establish that such person has abated the commission of suicide and for that purpose, the act of accused must fall in any of three ingredients as specified under Section 107 of IPC.
17. In the case of Sanju (supra), the Hon'ble Supreme Court has held as under:
8. In Swamy Prahaladdas v. State of M.P. [1995 Supp (3) SCC 438 : 1995 SCC (Cri) 943] the appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked to 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 : 1995 SCC (Cri) 1157] the appellant was charged for an offence under Section 306 IPC basically based upon the dying declaration of the deceased, which reads as under: (SCC p. 731, para 1) "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 IPC, found that the charge and conviction of the 13 Cr.R.No.4648/2019 appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment of 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 was considering the charge framed and the conviction for an offence under Section 306 IPC 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 herself on fire. Acquitting the accused this Court said:
(SCC p. 620) "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 accused charged for abetting the offence of suicide should be found guilty."
(emphasis supplied) 14 Cr.R.No.4648/2019
18. Further in the case of S.S. Chhena (supra), the Hon'ble Supreme Court has also held as under:-
"25. 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. The intention of the legislature and the ratio of the cases decided by this Court 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 that act must have been intended to push the deceased into such a position that he committed suicide.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
27. When we carefully scrutinise and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under Section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under Section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside."15 Cr.R.No.4648/2019
19. Likewise, in the case of M.Mohan vs. State Represented By the Deputy Superintendent of Police, reported in (2011) 3 SCC 626, Hon'ble the Supreme Court has held as under :
"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."
20. In another judgment Rajesh Vs. State of Haryana in Cr.A. No. 93/2019, the Hon'ble Supreme Court has also stated as under :-
"8. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (See Amalendu Pal alias Jhantu v. State of West Bengal) 16 Cr.R.No.4648/2019
21. In view of the aforesaid legal position, I would proceed to consider the merits of the matter on the basis of documents annexed with the charge-sheet.
22. As per prosecution, on 14.09.2011, on telephonic information received from attender posted at Hamidia Hospital, Bhopal regarding unnatural death of deceased, the police registered the marg and inquired the matter. As per post mortem report, cause of death of deceased was cardiorespiratory failure as a result of poisoning. The police recorded the statements of family members of deceased and other persons who stated that on account of harassment by the petitioners, the deceased committed suicide. The reason with the petitioners for torturing the deceased was previous dispute, going between them, the deceased lodged the complaint against the petitioners.
23. On perusal of statements of witnesses, it is found that all the witnesses have failed to explain that what kind of harassment was being done by the petitioners. They all generally stated that the petitioners threatened the deceased on account of previous dispute 17 Cr.R.No.4648/2019 which led him to commit suicide. Vishal Sharma and Jayant Agrawal are the witnesses who chatted with the deceased last time. These witness have also not stated about any specific act of the petitioners. There is no witness who had seen the petitioners harassing the deceased. The deceased or his family members did not take pains to inform the police about harassment of deceased by petitioners. Delay in lodging the FIR as well recording the statements of witnesses is also one of the factor to taken into consideration.
24. There is no material to show any active instigation/abetment by petitioners to deceased to commit suicide. There is also no sufficient material to demonstrate that the petitioners were involved in mental process of instigating the deceased to commit suicide. It is also revealed from the charge-sheet that there is no prima facie evidence in relation to act of continuous harassment of the deceased by the petitioners. It is settled law that if the instigation for commission of suicide is not established by the prosecution then certainly the charge under section 306 IPC cannot be framed.
18Cr.R.No.4648/2019
25. Even if it is accepted that petitioners/accused threatened the deceased, their act do not come under the purview of abetment to commit suicide. In this regard in the case of Manish Dubey V. State of M.P. [2018 (III) MPWN 69] decided on 07.09.2018, this High Court has held as under :-
"15. Even if the deceased was in any manner threatened or harassed, he could have lodged the report against the petitioner and without lodging a report he has taken a drastic step of committing suicide to punish his tormentors in his own way. This cannot be termed as "abetment to commit suicide." Following the law laid down in the case of Ram Naresh and Another V. State of M.P. and others [2002 (2) MPHT 183], this Court is also of the opinion that the report against the accused persons for alleged torture and threat to kill the deceased may constitute other offences but it may not be offence under Section 306 of the IPC. The deceased could have moved to the police or higher officials instead of taking his legal and legitimate action as the deceased adopted an escapist course of committing suicide in order to take revenge from his alleged tormentors. No case for alleged commission of the offence is made out against the petitioner."
26. Thus, keeping in mind the mandates of the Hon'ble Apex Court as well as this High Court and on perusal of the total material available against the petitioners in charge-sheet, it is not shown by the prosecution that petitioners had ever instigated the deceased for commission of suicide and in view of that, framing the charge under Section 19 Cr.R.No.4648/2019 306 of IPC appears to be erroneous. Hence, the impugned order is liable to be set-aside. Consequently, the revision petition is allowed. The impugned order of framing of charge under Section 306 of IPC against the petitioners is set aside and the petitioners are discharged from the aforesaid charge.
(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2020.09.23 17:25:12 +05'30'