Madhya Pradesh High Court
Sohanlal vs State Of Madhya Pradesh on 10 January, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
Criminal Revision No. 1433/2019
(Sohanlal Vs. State of M.P.
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
(SB: Hon'ble Shri Justice Rajendra Kumar Srivastava)
Criminal Revision No. 1433/2019.
Sohanlal.
Versus
State of M.P.
Shri Dilip Kumar Vishwakarma, Advocate for the petitioner.
Shri Rangdev Singh, Panel Lawyer for the State.
Whether approved for reporting:
Law laid down:
Significant paragraphs:
-O R D E R-
(10/01/2020)
Petitioner-accused has filed this criminal revision under Section
397 read with Section 401 of Criminal Procedure Code to set-aside
the impugned order dated 28/01/2019 passed by Forth Additional
Sessions Judge Sagar in Sessions Trial No. 19/2019 whereby learned
Forth Additional Sessions Judge, Sagar framed charges against the
petitioner-accused for the offence punishable under Sections 306 of
IPC.
2. The facts of the prosecution case are that Makhanlal informed
the police Station Kotwali, District Sagar on 01.04.2018 that deceased
Rajkumar is his younger brother. He is unmarried. He was ill since 15
to 20 days. He has taken treatment of doctor Murari. On 30.04.2018
he committed suicide by hanging, marg No. 40/2018 under Section
174 Cr.P.C. was registered at Police Station Kotwali, Sagar. It was
Criminal Revision No. 1433/2019
(Sohanlal Vs. State of M.P.
2
found in inquiry that deceased was brother of present petitioner.
Accused present petitioner accused is elder brother of informant
Makhanlal and deceased Rajkumar. Deceased Rajkumar demanded his
share from disputed house but petitioner-accused was not ready to
give his share although the share has already been given by his father
to the deceased but present petitioner-accused has possession of the
share of deceased, so deceased was humiliated by the petitioner-
accused. Petitioner-accused and his wife humiliated, tortured and also
beaten him from time to time. Apart from that a suicidal note was also
found in the Almirah of the deceased. All the facts of tortured and
humilation is mentioned in the suicidal note. After investigation
charge-sheet has been filed against the petitioner-accused under
Section 306 of IPC thereafter, learned trial judge framed the charges
against the petitioner-accused as aforesaid.
3. Learned counsel for the petitioner-accused submits that the
order of trial court is improper, incorrect and illegal in the eyes of
facts and law. Even if all the allegations of the prosecution are proved
then no case of abetment of suicide is made out. There is no ingredient
of Section 107 of IPC which is available on record. No call details as
well as reliable evidence have been produced before the learned trial
court. No independent witnesses is available on record. In the dying
declaration of the deceased there is no name has been deposed by the
deceased specifically that of the petitioner-accused. Prior to the
incident the deceased did not make any complaint to any authority
against the petitioner-accused which shows the intention of police to
implicate petitioner-accused falsely. The charges are absolutely
Criminal Revision No. 1433/2019
(Sohanlal Vs. State of M.P.
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groundless against the petitioner-accused,so learned trial court has not
appreciated the entire material as well as documentary evidence, so
impugned order is not proper so this court may be pleased to set-aside
the impugned order dated 28.01.2019.
4. Learned counsel for the respondent-State submits that there is
ample evidence available on record, so prima-facie case is made out against the petitioner-accused. Charge can be framed on the grave suspicion, so petition be dismissed.
5. Heard both the parties and perused the record.
6. It is evident from the record that learned trial judge framed the charges against the petitioner-accused under Sections 306 of IPC, so it must be seen that what is the evidence against the petitioner- accused. Section 227 of Code Of Criminal Procedure, 1973 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.
Section 228 of Code Of Criminal Procedure, 1973 reads 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.
Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 4 (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.
7. 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 & Ors., [1979] 4 SCC 274 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 other-
wise, 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 rounded 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."
Hon'ble Supreme Court again in the case of Union of India Vs. Prafulla Kumar Samal and another AIR 1979 SC 366 has held as under:-
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:
Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 5 (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 Judge cannot act merely as a Post office or a mouth-piece 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. Hon'ble Apex Court in the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another 2005(2) SCC 561 has held as under:-
"It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicing the accused has been made out. At that state, even strong suspicion founded on material which leads that court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
9. Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"As a result of the aforesaid discussion, in our view, clearly Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 6 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 power to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
10. The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has held as under:-
"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 etc. 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., Court 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 Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 7 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)
11. The Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 36 has held as under:-
"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
12. Hon'ble Apex Court dealt with the similar issue in the case of The Hon'ble Apex Court dealt with the similar issue in the case of M.Mohan vs. State represented by the Deputy Superintendent of Police reported in (2011) 3 SCC 626.
9. "36. We would like to deal with the concept of 'abetment'. Section 306 of the Code deals with 'abetment of suicide' which 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 extent to ten years, and shall also be liable to fine."
37. The word 'suicide' in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 8 and requires no explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
38. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of I.P.C.
39. Abetment of a thing' has been defined under section 107 of the Code. We deem it appropriate to reproduce 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 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 2 which has been inserted along with section 107 reads as under:
"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."
40. The Learned counsel also placed reliance on yet another judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, in which a three-Judge Bench of this court had an occasion to deal with the case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide.
41.This Court in SCC para 20 of Ramesh Kumar (2001) 9 SCC 618: 2002 SCC(Cri) 1088 has examined different shades of the meaning of "instigation'. Para 20 reads as under:(SCC p.
629) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 9 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." In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn.
13. On dated 01.05.2010 brother of deceased Makhanlal lodged marg intimation at Kotwali, Sagar that he is a businessman. Deceased Raj Kumar is his younger brother. Rajkumar resides inside of his house, he is unmarried. He taken food in his house. Rajkumar is not feeling well from 13 to 20 days. He was taking treatment from Dr. Murari. He committed suicide by hanging. He does not know what is the reason to commit suicide. During the investigation a suicidal note of deceased was seized from the possession of Makhan Lal Soni. Makhan Lal Soni stated in his statement that suicidal note was kept in Almirah but investigating officer mentioned in charge-sheet about this suicidal note that suicidal note is doubtful, deceased did not sign in this suicidal note, hand writing is also different, so it is cleared that suicidal note is very doubtful. During investigation statement of Makhanlal Soni, Nitesh, Anil, Neeraj, Gopal , Anil and Kamlesh have been recorded. It is cleared from the statement of witnesses, disputed house was name of the petitioner- accused. Petitioner-accused is elder brother of deceased and Makhan Lal. Disputed house was got in Criminal Revision No. 1433/2019 (Sohanlal Vs. State of M.P. 10 partition to the deceased but the disputed house was in the named of the petitioner-accused. Petitioner-accused was not ready to give that house to the deceased.
14. It is evident from the record that there was a civil dispute between the parties about immovable property. Deceased was brother of the present petitioner-accused. He was living in one room but he wanted the complete share of disputed house but petitioner-accused was not ready for this. Petitioner-accused is elder brother of the deceased. Deceased was unmarried. The name of the deceased was not entered in the documents of the disputed house. So it is a matter of only civil dispute, so there was no intention of petitioner-accused for atetment of suicide of deceased. So prima facie, no case is made out under Section 306 of IPC.
15. Accordingly, this petition is allowed, the impugned order dated 28/01/2019 passed by Forth Additional Sessions Judge Sagar in Sessions Trial No. 19/2019 whereby learned Forth Additional Sessions Judge, Sagar framed charges against the petitioner-accused for the offence punishable under Sections 306 of IPC is set-aside.
Certified copy as per rules.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA Digitally signed by ARVIND KUMAR MISHRA Date: 2020.01.10 17:05:17 +05'30'