Rajasthan High Court - Jodhpur
Shankar Lal vs State & Anr on 9 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1784 / 2013
Shankar Lal S/o Radhakrishan, Maheshwari, R/o Near Tagore
School, Suratgarh, Tehsil Suratgarh District Sri Gangangar.
----Petitioner
Versus
1. State of Rajasthan.
2. Purushottam Kumar S/o Satyanarayan Mohta B/c Maheshwari,
aged 42 years, R/o H. No.3-4 Ward No.14, Deep Colony,
Hanumangarh Junction.
----Respondents
Connected With
S.B. Criminal Misc(Pet.) No. 2534 / 2013
Vijendra Shastri S/o Jagna Ram, by caste Brahmin, R/o Purana
Bazar, Near Jain Temple, Suratgarh, District Sri Ganganagar.
----Petitioner
Versus
1. State of Rajasthan.
2. Purushottam Kumar S/o Satya Narayan Mohta B/c Maheshwari,
aged 42 years, R/o H. No.3-4 Ward No.14, Deep Colony,
Hanumangarh Junction.
----Respondent
_____________________________________________________
For Petitioner(s) :Mr. Farzand Ali, Mr. Pradeep Choudhary
For Respondent(s) :Mr. MS Panawar, PP
Mr. DD Chitlangi, for the complainant
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 09/08/2017
1. Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. for quashing of the FIR No.399/2013 registered at PS Hanumangarh Junction District Hanumangarh for the offencue falling under Section 306 and 120-B of IPC.
2. Learned counsel for the petitioner has pointed out that the FIR itself as an allegation levelled by the complainant that one Mahesh Kumar whose maternal uncle was the deceased Pawan Kumar was married with Aruna and the petitioner was instrumental in arranging the marriage between them. There was a matrimonial rift between the spouses and bad blood between both the parties. The relatives of Pawan Kumar were being threatened of criminal prosecution. The complainant alleged that his deceased brother being under severe pressure of the threat of criminal prosecution committed suicide. It is also alleged that the deceased left a suicide note before jumping into the canal.
3. Learned counsel for the petitioner has stated that on careful reading of Section 306 read with Section 107 of IPC, the ingredients of the offence under Section 306 are not made out.
4. However, Learned Public Prosecutor and learned counsel for the respondent have pointed out that the investigation has prima facie found, the case to be made out under Section 306 and 120-B of IPC. Learned Public Prosecutor also drew attention of the Court to the dying declaration which reads as follows :-
"eSa iou dqekj eksgrk vkRegR;k dj jgk gwa blds fy, blds fy, rhu O;fDr f'ko lkjM+k th] fotsUnz th 'kkL=h] 'kadj eqa/kM+k th ftEesokj gSaA ;s eq>s esjs HkkUts egs'k ds ifRu ds lkFk vucu ds dsl esa >wBk uke fy[kokdj tSy djokus dh /kedh nsdj :i;s ,asBus ds fy, Cysdesy dj jgs gSaA 8 tqykbZ 2013 rhuksa lwjrx< fuoklh gSaA iou dqekj eksgrk"
5. The purport of the suicide note is that Shiv Sarda Ji, Vijendra Ji Sashtri, Shanker Mundhra are responsible for the death of Pawan Kumar as his Nephew Mahesh (Bhanja) was having matrimonial strain with his wife and these three persons were continuously threatening the deceased and blackmailing him that Pawan Kumar deceased shall be implicated falsely in the matrimonial case. Apparently, the suicide note reflects that the matrimonial dispute was there between the parties and which brought stress to the deceased person who committed suicide due to the stress and fear of being implicated in the resulting case.
6. Learned counsel for the petitioner has relied upon the judgment passed by this Court in SB Criminal Misc. Petition No. 2450/2017, Praveen Kumar VS. State of Rajasthan & Anr., decided on 03.08.2017 which reads as follows :-
"1. The petitioner has preferred this misc. petition under Section 482 Cr.P.C. against the order dated 15.09.2014 passed by learned Additional Sessions Judge, Bhadra, District Hanumangarh in Criminal Revision No.13/2013 where he has upheld the order dated 09.07.2013 passed by learned Additional Chief Judicial Magistrate, Bhadra, District Hanumangarh in final report No.21/2009 (FIR No.67/2008) registered at Police Station Bhadra whereby he has taken cognizance against the petitioner for the alleged offence under Section 306 IPC.
2. The brief facts as noticed by this Court are that a complaint was filed by the respondent No.2. under Section 156(3) Cr.P.C. and consequently, FIR No.67/2008 was registered at Police Station Bhadra, District Hanumangarh. The complainant's daughter Anita Raj @ Kiran was proposed to be married to Praveen Kumar the present petitioner. The engagement ceremony between Anita Raj @ Kiran and Praveen Kumar was held on 13.03.2005. The deceased girl Anita Raj @ Kiran was pursuing L.L.B. and her fiance Praveen Kumar had completed his IIT. The young girl and the boy remained in touch on telephone but then the matrimony could not take place as the family members of Praveen Kumar refused to go ahead with the same. The deceased girl Anita Raj @ Kiran tried to call Praveen Kumar and finally when they spoke, Praveen Kumar told Anita that he was not in a position to marry her. The deceased girl become depressed and consumed poison on the same day and expired during treatment.
3. Learned counsel for the petitioner has pointed out that not even a single statement or record is there which show the abetment for the commission of suicide.
4. Learned counsel for the petitioner drew attention of this Court to the definition of Section 107 of IPC, 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 wilful concealment of a material fact which he is bound to dis- close, 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 authorized 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 facilitate the commission thereof, is said to aid the doing of that act."
5. Learned counsel for the petitioner thus, framed an argument that neither the petitioner instigated the deceased girl nor engaged in a conspiracy to doing any act or illegal omission in pursuance of conspiracy or he intentionally committed illegal omission and thus, does not fall within the purview of the definition of Section 107 read with Section 306 IPC.
6. Learned counsel for the petitioner also pointed out that in Explanation-1 also, there was an element of willful misrepresentation of material facts which is also not there in the case. It is further pointed out that facilitation for the commission of the act was also an important ingredient and thus, his argument was that abettor must have intention at the commission of the offence and more proof that the crime charged could not have been committed without interposition of the alleged abettor is not enough compliance of the requirement of Section 107 of IPC.
7. Learned counsel for the petitioner has relied upon the judgment of Amalendu Pal alias Jhantu Vs. State of West Bengal reported in (2010) 1 Supreme Court Cases (Cri) 896. The relevant portion of the judgment reads as under:
"10. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab as follows in paras 12 and 13:"
"12. Abetment involves a mental process of instigating 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 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 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 of abetting the offence of suicide should be found guilty."
11. Further in the case of Kishori Lal v. State of M.P.,2 (2007) 10 SCC 797, this Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6:
"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."
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 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.
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 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 facilitate the commission thereof, is said to aid the doing of that act."
8. Learned counsel for the petitioner has placed reliance on Madan Mohan Singh Vs. State of Gujarat and Another. reported in (2010) 8 Supreme Court Cases 628. The relevant portion of the judgment reads as under:
"12. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.
16. Insofar as Section 294(b) IPC is concerned, we could not find a single word in the FIR or even in the so-called suicide note. Insofar as Section 306 IPC is concerned, even at the cost of repetition, we may say that merely because a person had a grudge against his superior officer and committed suicide on account of that grudge, even honestly feeling that he was wronged, it would still not be a proper allegation for basing the charge under Section 306 IPC. It will still fall short of a proper allegation. It would have to be objectively seen whether the allegations made could reasonably be viewed as proper allegations against the appellant/accused to the effect that he had intended or engineered the suicide of the concerned person by his acts, words etc. When we put the present FIR on this test, it falls short. "
9. Learned counsel for the petitioner has placed reliance on Sanju alias Sanjay Singh Sengar Vs. State of M.P. reported in 2002 Supreme Court Cases (Cri) 1141. The relevant portion of the judgment reads as under:
"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."
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 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 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."
10. Learned counsel for the petitioner has placed reliance on Swamy Prahalaaddas Vs. State of M.P. & Anr. reported in 1995 Supp. (3) SCC
438. The relevant portion of the judgment reads as under:
"3. At the time of framing of charge, the trial court thought it appropriate to associate the Appellant herein as an accused because of the words he uttered to the deceased. We think that just on the basis of that utterance the Court of Session was in error in summoning the Appellant to face trial.
In the first place it is difficult, in the facts and circumstances, to come to even a prima facie view that what was uttered by the Appellant was enough to instigate the deceased to commit suicide. Those words are casual in nature which are often employed in the heat of the moment between quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events. Besides the deceased had plenty of time to weigh the pros and cons of the act by which he ultimately ended his life. It cannot be said that the suicide by the deceased was the direct result of the words uttered by the Appellant."
11. Learned counsel for the petitioner has placed reliance on State of Kerala & Ors. Vs. S. Unnikrishnan Nair & Ors. reported in Manu/SC/0881/2015. The relevant portion of the judgment reads as under:
"16. As far as Praveen Pradhan (supra), is concerned, Mr. Rao, has emphatically relied on it for the purpose that the Court had declined to quash the F.I.R. as there was a suicide note. Mr. Rao has drawn out attention to paragraph 10 of the judgment, wherein the suicide note has been reproduced. The Court in the said case has referred to certain authorities with regard to Section 107 Indian Penal Code and opined as under:
In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force 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 Section 228 Code of Criminal Procedure.
Thus, the case is required to be considered in the light of aforesaid settled legal propositions.
In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the Appellant, upon non- fulfillment of which, he would be mercilessly harassed by the Appellant for a prolonged period of time. He had also been forced to work continuously for a long durations in the factory, vis-à-vis other employees which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, "had there been any other person in his place, he would have certainly committed suicide" is what makes the present case distinct from the aforementioned cases considering the facts and circumstances of the present case, we do not think it is a case which requires any interference by this Court as regards the impugned judgment and order of the High Court."
12. Learned counsel for the petitioner has placed reliance on Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi). reported in AIR 2010 SC 1446. The relevant portion of the judgment reads as under:
"12. As per the Section, a person can be said to have abetted in doing 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. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC.
14. As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who "instigates" any person to do that thing. The word "instigate" is not defined in the IPC. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618. Speaking for the three-Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said 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. 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.
15. 15. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage 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" (See: Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictionary - 7th Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar's case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation."
13. Learned counsel for the petitioner has also placed reliance on Ramesh Kumar Vs. State of Chhattisgarh reported in AIR 2001 SC 3837. The relevant portion of the judgment reads as under:
"9. So far as the offence under Section 306 of IPC is concerned, in our opinion, the Trial Court and the High Court have committed gross error of law in holding the accused- appellant guilty and therefore conviction under Section 306 IPC deserves to be quashed and set aside.
14. The present case is not one which may fall under clauses, secondly and thirdly of Section 107 of Indian Penal Code. The case has to be decided by reference to the first clause, i.e., whether the accused-appellant abetted the suicide by instigating her to do so.
22. The picture which emerges from a cumulative rending and assessment of the material available is this. Presumably because of disinclination on the part of the accused to drop the deceased at her sister's residence the deceased felt disappointed, frustrated and depressed. She was overtaken by a feeling of shortcoming which she attributed to herself. She was overcome by a forceful feeling generating within her that in the assessment of her husband she did not deserve to be his life-partner. The accused Ramesh may or must have told the deceased that she was free to go anywhere she liked. May be that was in a fit of anger as contrary to his wish and immediate conveyance the deceased was emphatic on being dropped at her sister's residence to see her. Presumably the accused may have said some such thing-you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had "freed" her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband's wish. Can this be called an abetment of suicide? Unfortunately, the Trial Court mis-spelt out the meaning of the expression attributed by the deceased to her husband as suggesting that the accused had made her free to commit suicide. Making the deceased free-to go wherever she liked and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free "to commit suicide" as held by the Trial Court and upheld by the High Court.
23. 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."
14. Learned counsel for the petitioner has pointed out that consistently the Hon'ble Apex Court has held that guilt of the accused person has to be proved by the direct evidence and active role on the part of the accused in the abetment by direct or indirect instigation or to act or facilitate to commission of suicide which will have the necessary ingredients but are not there in the present case. Merely since the petitioner-accused refused to marry the deceased girl cannot be said to be an instigation or facilitation or having direct or indirect role in the act and thus, the Section 306 IPC as per learned counsel for the petitioner would not be made. Even if the boy was wrong on account of refusal to marriage but the same would not amount to instigation as mens rea is the necessary concomitant for instigation. The negative final report was filed by the police on investigation but after examining 10 witnesses in the protest petition, the learned court below took cognizance vide order dated 09.07.2013. The revisionary court upheld the order of cognizance vide order dated 15.09.2014.
15. Learned counsel for the respondent has submitted that the petitioner and the deceased girl were in relationship as reflected in the call record and letters were exchanged between them. It is further submitted that the petitioner had broken heart of the deceased girl thus, driving her into depression which resulted into her suicide.
16. Learned counsel for the respondent states that after entering into a relationship withdrawal from the same by the petitioner resulted into the act of the deceased girl.
17. After hearing learned counsel for parties and perusing the record of the case along with precedent law cited at Bar, this Court is of the opinion that thought the relationship between the girl and boy was established and they were engaged/betrothed but that does not mean that the failure of such relationship to be carried into an institution of matrimony would be an instigation or facilitation to the suicide committed by the deceased girl upon refusal of boy to marry. There is nothing on record to suggest that the necessary ingredients of Section 107 IPC were found in the present case so as to make out an offence under Section 306 IPC. On conjoint reading of Section 306 & 107 IPC, this Court is of the opinion that the legislative intention is apparently clear and the petitioner was not involved in instigating or facilitating or to be directly involved in the act upon the deceased girl so as to make him responsible for the act of suicide committed by the girl. It is extremely unfortunate that the girl chose to commit suicide on account of failure of the relationship which might have culminated in a marriage but that does not mean that present petitioner should be tried under the criminal law particularly filed under Section 306 IPC. The holistic view has to be taken as facts of each case, the maximum allegation travels to withdrawing of the petitioner from the proposal of marriage after engagement but it does not attribute the petitioner commitment of any such act which would amount to facilitation or instigation in terms of the definition suggested in Section 107 of IPC.
18. In light of the aforesaid discussion, the misc. petition is accordingly allowed and the impugned order dated 15.09.2014 passed by learned Additional Sessions Judge, Bhadra, District Hanumangarh in Criminal Revision No.13/2013 along with order dated 09.07.2013 passed by learned Additional Chief Judicial Magistrate, Bhadra, District Hanumangarh taking cognizance for the offence under Section 306 IPC is hereby quashed and set aside. The stay petition also stands disposed. "
7. Thus, in case, Section 107 of IPC where instigation, engagement with one or more persons, or an intentional aiding are the vital components which would bring the allegations within the purview of Section 306 of IPC but are not there.
8. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that the guilt of the accused persons has to be proved with a direct evidence and active role in abatement to suicide and unless such abatement is proved by instigation or facilitation of commission of suicide the ingredients will not be made out. The petitioners might have threatened the deceased Pawan Kumar with a criminal case arising out of a matrimonial deference between the relatives but no where in the suicide note there is any instigation to commit suicide or any such reason which would amount to direct active participation in facilitation of suicide.
9. The case diary submitted by the learned Public Prosecutor also does not deals with the situation so as to point out the direct involvement of the petitioner so as to constitute the offence under Section 306 of IPC through the enabling provision under Section 107 of IPC. Thus, there is nothing on record to suggest that the necessary ingredients of Section 107 of IPC were found in the present case to make out an offence under Section 306 of IPC.
10. On conjoint reading of Section 306 & 107 of IPC, this Court is of the opinion that the legislative intention is apparently clear and the petitioner was not involved in instigating or facilitating or aiding the act of suicide done by the deceased Pawan Kumar. It is extremely unfortunate that person has committed suicide and brought his lift to an end for stress arising out of matrimonial dispute which in these days is not a rare of the rarest happenings in the social spectrum. The suicide note is apparently alleging only the stress of the alleged false case that the petitioner might have lodged against the deceased person on account of failure of the matrimonial relation-ship amongst the relatives. Thus, continuance of proceeding where on the face of it offence is constituted shall be abuse of process of law.
11. In the aforesaid observation, the present misc. petition is allowed and FIR No.399/2013 registered at Police Station Hanumangarh Junction, Distrcit Hanumangarh is quashed and set aside qua the petitioner.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer