Andhra Pradesh High Court - Amravati
Shaik Khaja Kutubuddin Chisty Gorebabu vs The State Of A.P., Rep. By Its Sho., on 23 September, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
Criminal Petition No. 1680 of 2013
ORDER:
Heard Sri. Mangena Sree Rama, learned counsel for the Petitioner/accused, and the learned Public Prosecutor representing the State. With their consent, the Criminal Petition is disposed of, through BlueJeans video conferencing app.
1) This Criminal Petition, under Section 482 of Code of Criminal Procedure, 1973, came to be filed, seeking quashing of all further proceedings in P.R.C. No. 1 of 2012, on the file of II Metropolitan Magistrate for Railways, Vijayawada.
2) Originally, a case in Cr. No. 63 of 2011 of Bhimavaram Railway Police Station, came to be registered against the Petitioner/accused and the police, after investigation, filed a charge-sheet against the Petitioner/accused for the offence punishable under Section 306 I.P.C., which was taken on file as P.R.C. No. 1 of 2012.
3) A perusal of the charge-sheet shows that, on 08.08.2011, one women, by name, Shaik Rasool Bee, who is the daughter of LW7, was missing from her house. LW7 lodged a report with the police, which came to be registered as Cr. No. 127 of 2011 under woman missing. The said report was lodged, on 24.10.2011. LW7 gave a representation to the office bearers of the Muslim Welfare Association, Akividu village, of which, the Petitioner/accused is a Treasurer, for tracing out the missing woman. Pursuant thereto, the 2 Members of the Muslim Organization started making efforts to trace the said woman.
4) While things stood thus, the Sub-Inspector of Police, Akividu Police Station, obtained call data of the phone number of the missing woman and the messages received by her from the mobile phone bearing no. 9030434487 belonging to the deceased. As per the call log list, it was observed that, number of messages were received to and from the mobile phone number of missing woman, which is 8121352802, during the said period. The Petitioner/accused started calling the deceased to find out the whereabouts of the missing woman. It is said that, the deceased accompanied by his elder brother [LW4] and other relatives, went to the house of the Petitioner/accused, as he was telephoning to the deceased regularly to find out the whereabouts of the missing woman.
5) The averments in the charge-sheet further show that, the Sub- Inspector of Police - Sri. Y. Ravi Kumar of Akividu Police Station, secured the presence of deceased, his elder brother [LW4] and junior paternal uncle [LW5] to the police station, showed them the call log list, messages sent, and asked them to convince the deceased and get back the said missing woman. Taking advantage of the details of the phone calls data, etc., the Petitioner/accused started pressurising the deceased to inform the whereabouts of the said woman. It is said that, unable to bear the continuous agony by the Petitioner/accused, for disclosing the whereabouts of the missing 3 woman, the deceased is said to have committed suicide, on 04.12.2011 at 9.30 P.M., by falling under a running train, in between Akividu and Undi Railway Stations. One Bollam Venkata Ratnam, who is a Gangman, while performing the checking of track, noticed the dead body of the deceased and informed to Deputy Station Superintendent [LW1], who in-turn gave a report to Bhimavaram Railway Police Station, on 05.12.2011 at 8.10 A.M. On the strength of the report received, a case in Cr. No. 63 of 2011 was registered under Section 174 Cr.P.C., of Bhimavaram Railway Police Station. After completing the investigation, a charge-sheet came to be filed against the Petitioner/accused for the offence punishable under Section 306 I.P.C.
6) In substance, the gist of the allegations in charge-sheet are that, the daughter of LW7 was missing from home and, as per the details of the call log, which was disclosed to LW7, the Petitioner/accused and other Members of the Muslim community started pressurising the deceased to inform them as to whereabouts of the missing woman, since, there was proof of exchange of phone calls and messages between them. In-fact, the Sub-Inspector of Police, himself, while giving the call data, requested LW4 and LW5 who are relatives of deceased and LW11 & LW12 to convince the deceased and help them in tracing the missing woman. The Petitioner/accused who was a Member of the Muslim community, to which LW7 was also a Member and to whom a request was made, started probing into the matter. While enquiring the whereabouts of 4 the missing of woman with the deceased and being afraid of the continuous persuasion by the Petitioner/accused, the deceased is said to have committed suicide. This, in substance, is the case of the prosecution.
7) Sri. Mangena Sree Rama, learned counsel for the Petitioner/accused would submit that, even accepting the entire allegation in the charge-sheet to be true, no offence is made out against the Petitioner/accused for the offence punishable under Section 306 I.P.C.
8) The same is opposed by the learned Public Prosecutor contending that, but, for the continuous instigation and harassment by the Petitioner/accused to know the whereabouts of the missing woman, the deceased would not have committed suicide.
9) The point that arises for consideration is, whether the ingredients constituting an offence punishable under Section 306 I.P.C., are made out?
10) It is not a case, where, any presumption under Section 113(A) or 113(B) can be drawn. The entire case relates to repeated persuasion made by the Petitioner/accused to know the whereabouts of a missing woman, who happens to be the daughter of LW7 and who requested the Muslim Welfare Organization, of which the Petitioner/accused and LW7 are Members to help him in tracing his daughter.
5
11) In order to constitute an offence punishable under Section 306 I.P.C., which deals with 'Abetment of Suicide", the prosecution has to prima facie prove the abetment, within the meaning of Section 107 IPC. Section 107 I.P.C., which defines the expression of 'abetment of a thing" reads as follows:-
"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 disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said 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) The word 'abetment' referred to under Section 306 I.P.C., the definition of which is provided under Section 107 I.P.C., states that, a person abets the doing of a thing, if he, "instigates any person to do that thing; or 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 6 of that thing; or intentionally aids, by any act or illegal omission, the doing of that thing.
13) In Ude Singh vs The State Of Haryana1, the Hon'ble Apex Court, while referring to the judgment in Ramesh Kumar v. State of Chhattisgarh2 inter alia observed as under:-
"34. The word ''abetment'' has not been explained in Section 306 IPC. In this context, the definition of abetment as provided under Section 107 IPC is pertinent. Section 306 IPC seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element.......
xxx xxx xxx
36. The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or maybe by (implied) conduct.
37. The word "urge forwards" means to advise or try hard to persuade somebody to do something, to make a person to move more quickly in the particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to "goad" or "urge forward" the latter with the intention to provoke, incite or encourage the doing of an act by the latter. In order to prove abetment, it must be shown that the accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in 1 CRIMINAL APPEAL NO. 233 OF 2010 2 (2001) 9 SCC 618 7 routine or usual conversation should not be construed or misunderstood as "abetment".
14) The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or maybe by (implied) conduct.
15) Keeping in view the aforesaid legal position, the court is now required to see, as to whether, there was any abetment in committing suicide. Mere using of the word that the accused harassed the deceased, which made her to commit suicide, may not be sufficient. It is to be seen, whether the effort made by the accused to search for the missing woman, more so, pursuing the deceased to disclose the same, as there was lot of communication [exchange of phone calls and messages between the deceased and the missing woman] prior to and after she left the home, amounts to an act of abetment or instigation.
16) In S. S. Chheena v. Vijay Kumar Mahajan and Ors3, the Hon'ble Apex Court reiterated the essentials of the offence under Section 306 IPC as under:-
3
(2010) 12 SCC 190 8 "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."
17) In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), the Hon'ble Apex Court while referring to the decision in Ramesh Kumar (supra) and, while pointing out the complexities related with the determination of the question as to the cause of suicide, expounded on the relevant principles in the following:-
"19. As observed in Ramesh Kumar (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 9 the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
20. .............The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss or self- respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self."
18) In the case Amalendu Pal v. State of W.B. the Hon'ble Apex Court, after reference to several past decisions, held as follows:-
"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 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, conviction in terms of Section 306 IPC is not sustainable."
19) Therefore, in order to prove that, there was an abetment of suicide, there must be material on record to show that, there was direct or indirect acts of incitement to commission of suicide. 10
20) In the instant case, as seen from the material available on record, namely, charge-sheet and Section 161 Cr.P.C., statements, what all the Petitioner/accused has done is that, pursuant to a request made by LW7 requesting them to inquire into the missing of his daughter, and basing on the information furnished by the Sub- Inspector of Police to LW4, LW5, LW11, LW12 and others to find out from the deceased as to the whereabouts of the missing woman, the Petitioner/accused was persuading the deceased to tell him as to what happened to the missing woman. The Petitioner/accused never used force to extract any information, nor did he threaten the deceased with dire consequences, if information about the missing woman is not disclosed. It is not even the case of the prosecution that, prior to the incident, the Petitioner/accused had in any manner insisted or aided the deceased in the commission of the offence. In-fact, the averments in the charge-sheet show that, after all of them including the Sub-Inspector of Police, accused, LW4 and LW5 and elders left the police station on 04.12.2011 at about 8.30 P.M., after verifying the phone call details and messages, the deceased committed suicide at 9.30 P.M.
21) Hence, this court is of the opinion that, even accepting the entire case of the prosecution to be true, no offence punishable under Section 306 I.P.C., is made out.
22) For the aforesaid reasons, the Criminal Petition is allowed, quashing the proceedings, in P.R.C. No. 1 of 2012, on the file of II Metropolitan Magistrate for Railways, Vijayawada. No order as to costs. 11
23) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date: 23.09.2020 SM.
12
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR Criminal Petition No. 1680 of 2013 Date: .09.2020 SM.