Madhya Pradesh High Court
Sandeep Kumar Pandey vs The State Of Madhya Pradesh on 16 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1913
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 10419/2010
Sandeep Kumar Pandey
Vs
State of M.P. and another
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Shri Siddharth Datt, learned counsel for the petitioner.
Shri Rangdev Singh, learned P.L. for the respondent
No.1/State.
Shri Swati Aseem George, learned counsel for the respondent
No.2.
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ORDER
(16.09.2019) Petitioner-accused has filed this miscellaneous criminal case under Section 482 of Cr.P.C. to quash the FIR in Crime No. 153/2010 dated 30.05.2010 registered at Police Station Barhi, District Katni for the offence under Section 306/201 of IPC.
2. Prosecution case in short is that deceased-Smt. Laxmi Urmaliya was the wife of respondent No.2. She had burnt herself on 10.02.2010 at her house. She was admitted at Hospital, where she had died on 19.02.2010. Thereafter Marg No.8/2010 was registered under Section 174 of Cr.P.C.. During the inquiry, the statements of witnesses have been recorded. It is found that petitioner/accused was very close to deceased. Petitioner/accused used to come at her house, deceased prevented him, but petitioner/accused used to blackmail the deceased. At the time of incident, petitioner/accused was at her house. A dispute occurred due to which deceased committed suicide, she 2 M.Cr.C. No. 10419/10 had burnt herself from kerosene oil, but she deposed that when she was preparing food at that time she got fire. Therefore, FIR was registered.
3. Learned counsel for the petitioner submits that dying declaration was recorded by police. Deceased-Laxmi Urmaliya did not state anything against the petitioner/accused. Deceased was alive 8-9 days after the incident. She did not depose any facts or any allegation against the petitioner/accused. After her death, husband of deceased with the collusion of police has falsely implicated the petitioner/accused in a false and concocted case. Actually husband of deceased and his family members tortured the deceased due to which she committed suicide. Petitioner was made an accused in this case after three and half months and there is no explanation has been given by the police Barhi as to what basis he has been made as accused in this case. Petitioner/accused never tortured the deceased. As per dying declaration of deceased, she never stated even single word against the petitioner/accused. Therefore, there is no prima facie case is made out against the petitioner/accused. While preparing food deceased got fire at house, due to which she sustained burn injury on 10.02.2010. There is no eye witness in this case to prove that petitioner/accused has committed offence. So registration of FIR against the petitioner/accused is abuse of process of law. Therefore, he prays for quashing of the FIR.
4. Learned counsel for the respondent and objector's counsel submits that there is prima facie case against the petitioner/accused. Charge sheet has been filed, therefore, there is no 3 M.Cr.C. No. 10419/10 scope to invoke its inherent jurisdiction under Section 482 of Cr.P.C. to quash the FIR.
5. Heard both the parties and perused the case diary.
6. The Hon'ble Apex Court in the case of M. Mohan Vs. State represented by the Deputy Superintendent of Police [(2011) 3 SCC 626 dealt with the issue with regard to offence under Section 306 of IPC., which read as under :-
"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 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 -
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 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 4 M.Cr.C. No. 10419/10 order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
40. *******
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:
"20. 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."
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42. In State of West Bengal v. Orilal Jaiswal (1994) SCC (Cri) 107, this Court has cautioned that (SCC p. 90, para 17), the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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.
43. This court in Chitresh Kumar Chopra v.
State (Govt. of NCT of Delhi) had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self- esteem and self-respect. Therefore, it is 5 M.Cr.C. No. 10419/10 impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
44. 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.
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."
7. Further in the case of of S.S. Chhena Vs. Vijay Kumar Mahajan and another reported in (2010) 12 SCC 190, it is 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 scrutinize 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."6 M.Cr.C. No. 10419/10
8. It is evident from the record that deceased was the wife of respondent No.2. Deceased was living at Sandeep Colony, Barhi with her son Deepak Urmaliya. Petitioner/accused is maternal uncle (Mousa) of Deepak Urmaliya. Respondent No. 2 had been living in Bombay for 2-3 years for his work. Petitioner/accused used to come at the house of deceased. According to the prosecution, during this period his relation was very close with the deceased and due to which petitioner/accused started to blackmail the deceased. Petitioner/accused tortured and humiliated her. So, she committed suicide. At the time of incident, petitioner/accused was present at the house of deceased.
9. It is evident from the record that deceased was burnt on 10.02.2010, thereafter she was admitted in hospital by her brother Vinod Mishra. At the time of admission, it was told that deceased was preparing food at her home at that time she got fire from gas cylinder and she was burnt. An information has also been given to police chowki Katni, information was registered in Rojnamcha Sahna 271 dated 10.02.2010 mentioning the same story of incident. Doctor has examined the deceased and it is mentioned in the medical report that deceased was burnt at the time of preparing the food. Thereafter deceased has died on 19.02.2010. Marg was registered, Lash Panchayatnama was prepared. It is mentioned in the Panchnama that deceased was burnt at the time she was preparing tea. Post mortem was conducted by Doctor and he opined that deceased died due to extensive burn and other complication. The statement of deceased is also recorded by police, deceased herself stated in her statement that 7 M.Cr.C. No. 10419/10 she was burnt at the time of preparing food. So it is evident from the statement of deceased and preliminary proceeding about her death that she was burnt accidently while preparing food, but after some time new story has come on the record and this story is based upon oral evidence of the husband of deceased and other witnesses. New story is that there is a relation between deceased and petitioner/accused, due to which petitioner/accused was blackmailing her so she committed suicide. When deceased was admitted in hospital she was examined by doctor and it is not mentioned in the medical report of deceased that there was any substance or element of kerosene oil was found on her body. This fact has also not been disclosed during the treatment which was going continuously for 9 days. Though, allegation in this regard is that petitioner/accused cleaned the spot, but after one month of incident, some cloths were seized near the boundary of house, these burnt cloths were sent for chemical examination to the FSL Sagar and kerosene oil was found on these cloths but on the basis of this evidence, it can not be said that deceased was burnt from kerosene oil. After passing period of 4- 5 months, the husband of deceased and other witnesses told new story whereas deceased herself has clarified the cause of death in her statement, recorded by Investigating Officer. Thereafter, no dying declaration was recorded till 9 days by any Executive Magistrate or doctor when she was admitted in hospital. The brother of deceased told the authority of hospital that while preparing food, deceased got burnt by the fire at her home. Information of incident was also registered in Rojnamcha Sahna of Police Station, the same fact was 8 M.Cr.C. No. 10419/10 mentioned in the Rojnamcha Sahna. For the sake of argument, if it is presumed that there may have any relation between the deceased and petitioner, even then there is no evidence in the record to ascertain that by this reason petitioner was blackmailing the deceased which compelled her to commit suicide. Therefore, there is no prima facie material available on the record on which it can be said that petitioner/accused instigated deceased to commit suicide. So this proceeding is misuse of process of law. Thus, it is a proper case to invoke the inherent jurisdiction of this Court under Section 482 of Cr.P.C.
10. In the case of State of Harayana Vs. Bhajan Lal and others reported in 1992 SCC (Cri) 426 the Hon'ble Apex court has laid down the principle for quashing the FIR, same are held as under:-
"(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the un-controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
9M.Cr.C. No. 10419/10
(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. Further, a three judges Bench of Hon'ble Apex Court in Inder Mohan Goswami & Another v. State of Uttaranchal & Others AIR 2008 SC 251 has examined scope and ambit of section 482 of the Criminal Procedure Code. The court in the said case observed that inherent powers under section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court."
12. In view of the above discussion this Court finds that there is no sufficient material to send the petitioner/accuse for trial. In view of the guidelines laid down in Bhajan Lal Case, this Court deems fit to quash the FIR.
13. Accordingly, this petition is allowed and FIR in Crime No. 153/2010 dated 30.05.2010 registered at Police Station Barhi, District Katni and its consequential proceedings are hereby quashed against the petitioner.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.19 14:57:44 +05'30'