Madhya Pradesh High Court
Arvind Kashiv vs P.S.Timarni The State Of Madhya Pradesh on 27 January, 2015
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : HON'BLE SHRI JUSTICE M. K. MUDGAL.
Cr. Revision No. 105/2014
Arvind Kashiv and others
Vs.
State of MP
For Applicants : Shri Manish Dutt, Senior Advocate with Shri Pavan Gurjar,
learned counsel for the applicants/accused.
For Respondent: Shri Ramesh Kushwaha, learned PP for the State.
O R D E R (27th January, 2015) As per: Justice M.K. Mudgal, This criminal revision has been filed under Section 397/401 of the Code of Criminal Procedcure (hereinafter referred to as the Cr.P.C.) by the applicants/accused against the order dated 09012014 passed by the Court of Ist Additional Sessions Judge, Harda in S.T. No.435/2003 framing the charges under Section 306 of the IPC and in alternate Section 306/34 of the IPC.
2. The facts of the case in brief are that the deceased Balak Das was employed as Choukidar in the Irrigation Department at Timarni whereas the applicant/accused were posted as SubEngineers. The deceased committed suicide by hanging himself before at 8:00 am on 24082000 in the office. In this regard a mourg bearing No. 241/2000 was registered under Section 174 of the Cr.P.C. at Timarni. During investigation some written notes left by him were seized from his house on 26112000. The contents of the written notes are as follows : t; 'kkjnk ekWa EkSa cgqr ijs'kku jgrk gWw D;k d: le> esa ugh vkrk eS ,d&,d gtkj>kj :i;s djds ------- vjfcUn dkf'ko lgkc ds ikl tek djrs jgk gWw] ekpZ 19-3-97 ls dj jgk FkkA eq>s t:jr gksus ij muls ekxk rks eq>s :i;s nsus ls euk dj jgs gS]a esjs muds ikl 34 gtkj :i;k tek gSA vxj esjs lkFk dksbZ ? kVuk gksrh gks rks mlds vjfcUn dkf'ko lgkc ftesnkj gksaxsA esjs ejus ds ckn :i;s esjh chch dks fnyok;k tk;sA ckydnkl jaxksj lkej?kk miuxj fVejuh 20-05-2000 2 rFkk dqN yksx tSls ckck lgkc ds :i;s ns pqdk gWWw] fQj Hkh oks eq>s fnu jkr rax djrs 2000 :-
ekax jgs gSAa mUgs dsoy 2000 :- nsuk gS muds ikl esjk LVkEi fy[kk gksus ds dkj.k eq>s ijs'kku djrs gSAa ml LVkEi dks QkM+ ugh jgs gSaA ;fn esjs lkFk dksbZ Hkh ?kVuk gksrh gS rks bu nksuksa dks ftEesnkj ekuk tk;sA esjs ckn esjs iRuh ok cPpksa dks buds }kjk dqN gksxk rks ftEesnkj Hkh oks jgsaxsA vkidk ckydnkl jaxksj 13-08-2000 eknfy;k lk- 5 gtkj ds nl gtkj ekWax jgk gS] ikap ns pqdk gWw 10 :- lSdM+k ds ikWp vkSj ekax jgk gSA esjh ekSr dk ftEesnkj vjfcUn dkf'ko lk- ftuls 34 gtkj ysuk gS oks ugh ns jgsa gSAa mYVs esjs ls 25 gtkj :i;s ekax jgsa gSAa rFkk ckck ls 20000 :- eSaus fy;k Fkk 18000 ns pqdk gWAw 2000 nsuk ckdh gSA tks eq>ls chl gtkj gh ekax jgs gSAa muds ikl esjk LVkEi fy[kk gSA oks LVkEi ugh QkM+ jgs gSaA esjh fnekdh gkyr cgqr [kjkc gks xbZ gSA vkSj eknfy;k lk- ls 5000 fy;k Fkk] ns pqdk gwW] 10 :- lSdMk ds fglkc ls 5000 vkSj ekax jgsA esjs lkFk dksbZ ?kVuk gqbZ rks ;s Hkh tokcnkj gksaxsA vkidk ckydnkl jaxksj 8-8-2000 vkSj dkf'ko ls 34 gtkj :i;s esjs ckj esjh iRuh dks fnyk;k tk;sA ckydnkl jaxksj 8-8-2000
3. The statement of his wife Vimla Bai and other witnesses Ramakant, Vishnu Lal, Poonam Chand Jain, Madhukar Rao, Shyam Rao, Ku. Ritu and Govind were recorded on 25082000. Thereafter, an F.I.R. bearing Crime No. 120/03 was registered on 07062003. After investigation charge sheet was filed on 21092013. The charges were framed against the applicants/accused vide order dated 09012014.
4. Learned counsel for the applicants/accused submits that the learned trial Court has committed error in framing the charges against the applicants/accused under Section 306 of the IPC as there is no evidence on record against the applicants/accused for abating him to commit suicide. The abatement has been defined under Section 107 of the IPC too. The deceased was neither threatened nor oppressed by the applicants/accused in any manner for him to commit suicide. Moreover, even if the contents of the written notes left by the deceased are presumed to be correct, it cannot be deduced that the deceased was abated by the applicants/accused to commit suicide. More or less, if the deceased had to recover any amount of money from the applicant/accused No. 1 and some amount of money to pay to the applicant/accused No. 2 & 3 he could have taken legal recourse in this regard against them. Besides the contents of the notes do not fall within the scop of dying declaration. Apart from this, there is nothing in the notes to indicate that he was driven in any manner to commit suicide by the applicant/accused. Learned counsel further pleads that as per statement of the deceased's wife and 3 daughter, it has come on record, the deceased used to the very upset, because of the debt he had to pay. The counsel placing reliance upon the following judgments has prayed for setting aside the impugned order and discharging the applicants/accused: Sanju @ Sanjay Singh Sengar vs State of M.P., 2002 (5) SCC 371, S.S. Chheena vs Vijay Kumar Mahajan and another 2010 (12) SCC 190, Madan Mohan Singh vs State of Gujrat and another 2010 (8) SCC 628, Swamy Praladdas vs State of M.P. and another 1995 Supplementary (3) SCC 438, Netai Dutta vs State of W.B. 2005 (2) SCC 659, Ved Prakash Bhaiji vs State of M.P. 1994 JLJ 758, Ram Chandra vs State of M.P. 2009 (2) MPLJ 147, Gyan Singh Kushwaha and others vs. State of M.P. 2010 (1) MPLJ (Cri) 767, Paramjeet Singh Chawla vs State of M.P. 2007 Cr.L.J. 3343 and Ajay Patodiya vs State of M.P. 2003 (4) MPLJ 195]
5. Learned P.P. opposing the submissions made on behalf of the applicants/accused and supporting the impugned order has prayed for rejection of the petition.
6. Heard the arguments of both the parties.
7. Before going into the merits of the case this Court would like to throw light on term abatement to commit suicide. The word abatement has been defined under Section 107 of the IPC as under :
i) Instigating a person to commit an offence ; or
ii) engaging in a conspiracy to commit it ; or
iii) intentionally aiding a person to commit it.
A person is said to 'instigate' another to an act, when he actively suggests or stimulates him to the act by any means of language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word 'instigate' means to goad or urge forward or to provoke, incite, urge or encourage to do an act.
8. The Hon'ble Apex Court had an occasion in the judgment of the case Ramesh Kumar vs State of Chhatisgarh 2002 SCC (Cri.) 1088 to dwell in para 20 as under : "20. Instigation is to goad, urge forward, provide, 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 4 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 ahad 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 as instigation may been infered. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
9. Similarly, The Hon'ble Apex Court has referred a few judgment in 8 to 11 of the judgment in the case Sanju @ Sanjay vs State of M.P. 2002 (5) SCC 371 to clarify the term abatement which reads as under :
8. In Swamy Prahaladas vs. State of M.P. 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 vs. State of M.P. 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 motherinlaw and husband and sisterinlaw (husband's elder brother's wife) harassed me. They beat me and abused me. He has illicit connections with my sisterinlaw. 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 appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment of the deceased. This 5 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 bad set herself on 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."
10. In para 25 of the Hon'ble Apex Court judgment in the case of S.S. Cheema vs Vijay Kumar Mahajan and others 2012 (12) SCC 190 has observed 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.
6It 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.
In the judgment of this Court in the case of Radheshyam vs State of M.P. 2014 (3) MPHT 103 it is held that demanding borrowed money back cannot be construed as harassment to the deceased and abetting him to commit suicide.
11. The case in hand is being discussed in the light of the aforesaid judgments. When the deceased was on duty as Choukidar in the office on the fateful night there is no evidence on record indicating that the applicants/accused were present there and he was threatened by them in any manner. The alleged incident took place at mid night on 23082000 to 2408 2000. The deceased did not leave any suicide note written on the night of the said incident. The written notes seized during the investigation after three months as referred to earlier were written on 08082000 and 13082000 i.e. a few days before he committed suicide. When the said notes were allegedly prepared by the deceased, there were no circumstances before the deceased to think that he was likely to die, owing to which the notes cannot be treated to be a dying declaration as discussed and held by the Hon'ble Apex Court in the case of Babubhai Bhimabhai Bokhiria and another vs State of Gujarat and others 2014 (5) S.C.C. 568.
12. No injuries were found on his body in the post mortem report which indicates that the deceased had not been manhandled by anyone before he committed suicide. As per prosecution evidence if the deceased had to recover any sum of money from the applicants/accused No. 1 and to pay any money to others he could have taken legal recourse for the same and hence non payment of money by anyone or demand of money by any cannot be treated as abatement to commit suicide because in this case the deceased was not subjected to physical violence for any of the above purposes.
13. There is also no evidence on record suggesting that the deceased had been subjected to physical violence or threatened by the applicants/accused at any time earlier as no report to that effect was ever lodged by the deceased. On perusal of the statements of the wife and daughter of the deceased it can be said that the deceased had been in depression owing 7 to his being in debt. However, on the basis of the statements it cannot be inferred that the deceased had been abated to commit suicide by the applicants/accused.
14. Considering the entire evidence on record it is concluded that there is no sufficient evidence on record against the applicants/accused to charge them with the offences of abetting the deceased to commit suicide. Hence, the learned trial Court has committed error in framing the charge under Section 306 of the IPC and in alternate Section 306/34 of the IPC. Therefore, allowing the revision and setting the impugned order the applicants/accused are discharged from the charges under Section 306 of the IPC and in alternate Section 306/34 of the IPC levelled against them by the learned trial Court. Their bail bonds and surity bonds are hereby cancelled.
15. A copy of this order be sent to the trial Court for further compliance.
(M.K. Mudgal) Judge MOHSIN/