Madhya Pradesh High Court
Roopchand vs The State Of Madhya Pradesh on 22 December, 2016
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 M.Cr.C. No. 8083 of 2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No. 8083 OF 2016
Roopchand
-Vs-
State of M. P.
________________________________________________
Shri Praveen Kumar Chaturvedi, counsel for the
applicant.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondent/State.
________________________________________________
JUDGMENT
(22/12/2016) This petition under Section 482 of Cr.P.C. has been filed seeking quashment of F.I.R. in crime no. 761/2015 registered by Police Station Kotwali, Vidisha for offence under Section 306/34 of I.P.C. as well as the charge sheet and the criminal proceedings in S.T. No. 66/2016 pending in the Court of 1st A.S.J., Vidisha.
2. Prosecution case in short is that on 17-8-2014, the complainant Charan Singh Ahirwar, lodged a Gum Insaan Report in Police Station Civil Lines, Vidisha, alleging that he is residing at the given address and is labourer by profession. He is residing in a rented house along with his younger Rakesh Ahirwar who is working as Asstt. Secretary in Gram Panchayat Mudara Moghana. On 16-8-2014, he had come to get the father treated and therefore, he stayed with the complainant in the night. However, the father went back by bus. His younger brother along with Golu was 2 M.Cr.C. No. 8083 of 2016 sleeping in the separate room. In the morning, he found that Rakesh Ahirwar is missing. He searched for him but as his whereabouts could not be ascertained, therefore, a Gum Insaan Report was lodged.
3. On 18-8-2014, one Preetam Ahirwar gave an information to the police Station Kotwali, Distt. Vidisha that the dead body of an unknown person is lying on the banks of Betwa River who appears to be aged about 26-27 years. Half of the body was lying outside the river whereas half of the body was inside the river. On this report, Marg was recorded and the police started Marg Enquiry. The Spot map was prepared and the dead body was sent for postmortem. In the post mortem, the cause of death was found to be drowning. However, the right tibia bone was preserved for diatom test. It appears that the diatom test was not conducted in view of the specific finding by the autopsy surgeon that the cause of death was asphyxia due to drowning. In F.S.L. report, no poison was found in the viscera.
4. The police recorded the statement of Golu, Raghuvir on 18-8-2014. Golu stated that he had slept in the night of 16- 8-2014 and 17-8-2014 along with his brother Rakesh Ahirwar. However, in the morning he found that his brother is missing and he found that his mobile, purse and one suicide letter is kept on the table in which he has expressed that he had a suspicion that his wife Bharti has illicit relations with the applicant. Raghuvir, the father of deceased had stated that after getting treatment he went back to his house in the night of 16-8-2014. In the morning of 17-8-2014, he received a telephonic call from Golu that Rakesh is missing and one suicide note is found on the table.
3 M.Cr.C. No. 8083 of 20165. On 18-8-2014, Charan Ahirwar and his family members identified the dead body that of Rakesh Ahirwar. However, it is surprising that Raghuvir Ahirwar, father of Deceased Rakesh Ahirwar produced the alleged suicide note, on 9-10- 2014, i.e., after 2 months, which was allegedly written by deceased Rakesh.
6. The Police after investigation came to a conclusion that Rakesh was having suspicion that his wife Smt. Bharti is having illicit relations with the applicant and only because of that reason he has committed suicide. Thus, the police filed the charge sheet against the applicant and Smt. Bharti for offences punishable under Sections 306 read with Section 34 of I.P.C.
7. It is submitted by the learned Counsel for the applicant, that the so called suicide note was in fact a concocted and false document, as when the brother of the deceased namely Golu had already found a suicide note on the table of the deceased on 17-8-2014, then why the same was not handed over to the police immediately whereas the said so- called suicide note was seized by the police from the possession of Raghuvir on 9-10-2014, and why there is no mention of the said suicide note as well as the presence of Golu in the Gum Insaan Report which was lodged by Charan Ahirwar. Further, it was submitted by the learned Counsel for the applicant that there is nothing on record to suggest that the suicide note was written by the deceased himself. Further, it is submitted by the learned Counsel for the applicant that if the entire contents of the suicide note are accepted, even then, no case of abetment of suicide is made out against the applicant.
8. Per Contra, it is submitted by the learned Counsel for the State that as the applicant has having illicit relations with 4 M.Cr.C. No. 8083 of 2016 Smt. Bharti, the wife of the deceased, then that by itself would amount to abetment of commit suicide. He further submitted that whether the applicant is guilty of committing offence punishable under Section 306 of I.P.C. or not is a matter which can be adjudicated upon by the Trial Court only after recording of evidence.
9. Considered the rival contentions of the learned Counsel for the parties and perused the charge sheet.
10. Before considering the fact that whether the applicant has abeted the commission of suicide or not, it would be relevant to consider the suicide note allegedly written by the deceased Rakesh Ahirwar. The Suicide note is reproduced as under :
Þesjs fiz; ekrk&firk ,oa Hkkb;ksa] eSa vkils cgqr djrk gwW vkSj eSa cM+s nq[k ds lkFk dg jgk gWw fd vkidk vkSj esjk lkFk cl ;gha rd FkkA D;ksafd eq>s ifjokj rks vPNk feyk ysfdu eq>s ifRu vPNh ugha feyhA esjh ifRu pfj=ghu gSA og eq>s ikxy cuk jgh gS vkSj oks :ipan Bsdsnkj oS".kksansoh okys ds lkFk uktk;t laca/k j[krh gSA oks vius ?kj ls eq>ls feyus dk cgkuk cukdj :ipan ls feyus tkrh gSA os nksuksa lkaph jksM ij ,d jsLVksjs.V gS ogka ij tkrs gaSA ;g eq>s ,d ckj ckrksa&ckrksa essa Hkkjrh us crk;k Fkk fd lkaph jksM ij ,d vPNk jsLVksjsaV gSA viu ogka ?kweus pyk djsaxs ij eSa ugha tkrk FkkA ,d fnu tc esa tuin iapk;r esa Fkk rks eSaus Hkkjrh vkSj :ipan dks ogka ls lkaph dh vksj tkrs ns[kkA eSaus Hkkjrh dks dbZ ckj Qksu yxk;k ysfdu Hkkjrh us Qksu ugha mBk;kA 'kke dks eSaus Qksu yxk;k rks oks cM+h noh gqbZ vkokt esa cksyh mlus dgk vkSj ,d ysVj esjs uke ls ,d yM+ds ds }kjk eq>s fn;k ftlesa fy[kk FkkA eq>s vkt ds ckn u Qksu djuk vkSj u ;kn djuk] eSa cgqr tYnh vkidks ifr&ifRu ds bl >wBs fjLrs ls vktkn djus okyh gwWA esjk eSa ns[k ywaxh rqe flQZ vius ?kj okyksa esa eLr jgksA og esjs NksVs HkkbZ xksyw dks lcls T;knk uQjr djrh Fkh D;ksafd mlus ,d ckj ;g le> fy;k Fkk fd HkkHkh dk fdlh yM+ds ds lkFk dksbZ xyr laca/k gSA og eq>ls dgrh Fkh fd rqEgkjk ifjokj bdM+k gSA eq>s rqEgkjs ifjokj esa ls dksbZ Hkh ilan ugha gSA rqe Hkh ugha ij eSa dqN ugha dgrk Fkk oks eq>ls dbZ ckj dg pqdh Fkh fd rqe eq>s NksM+ nks ij eSa viuh vkSj vius ifjokj dh bTtr ds dkj.k bl ckr dks utj vankt dj nsrk FkkA og eq>ls ges'kk >wB cksyrh FkhA blfy;s vc esjh ftUnxh dk dksbZ eryc ugha eSa vkRegR;k djus tk jgk gWwA eq>s {kek dj nsukA esjh ifRu Hkkjrh eq>ls dgrh Fkh fd xksyw dks rks 5 M.Cr.C. No. 8083 of 2016 eSa lcd fl[kkÅWxh mlls cksy nsuk fd NksVk gS NksVs dh vkSdkr esa jgsA ugha rks lcdks ngst izFkk esa vanj djok nwwaxhA D;ksafd xksyw Mjrk ugha Fkk gj dqN eqag ij cksy nsrk Fkk blfy;s muds lkjs ifjokj dks xksyw [kjkc yxrk FkkA oks dgrh Fkh fd viu nksuksa fofn'kk esa vyx jgsaxs vkSj ;gha ls ukSdjh ds fy;s xkao pyk djsaxsA D;ksafd xkao esa og :ipan ¼:iflag½ Bsdsnkj oS".kksansoh ekrk eafnj okys ls ugha fey ikrh Fkh vkSj tc og mlds lkFk tkrh Fkh rks lkM+h igudj tkrh Fkh rkfd mu nksuksa ij dksbZ 'kd u dj lds ij esjs lkFk vHkh rd flQZ dqrhZ lyokj esa gh dgha tkrh FkhA ;fn dksbZ dke gksrk Fkk rks mlds fny esa esjs fy, dksbZ txg ugha Fkh vkSj u gh og eq>s ilan djrh Fkh og flQZ eq>s /kks[kk nsrh FkhA ;g eSaus dbZ ckj vktek fy;k FkkA eSa ,slh ifRu ds lkFk dSls viuh ftanxh fudkyrk ;fn eSa mls NksM+rk rks esjs ifjokj dh bTtr [kjkc gksrhA blfy;s eSaus lkspk fd eSa gh ej tkrk gWwA rks lc Bhd gks tk,xk u esjs ifjokj dh bTtr tk,xh vkSj esjh ifRu dk Hkh jkLrk lkQ gks tk,xk] blfy;s eSa vkRegR;k dj jgk gwwWA eq>s {kek dj nsukA ;s ?kVuk fnukad 13@08@2014 dh gSA bl fnu eSaus cq/kokj dks 12 cts yxHkx :ipan vkSj Hkkjrh dks ns[kk FkkAß
11. As per the prosecution story, the deceased was married to Smt. Bharti on 7-5-2014 and Smt. Bharti was residing in her parents house and had visited her matrimonial house for a very short period. As children of Charan were prosecuting their studies therefore, he had also shifted to Vidisha and was residing in the house of the applicant on rent alongwith the deceased and other brothers. From the plain reading of the suicide note, it appears that the deceased was having a suspicion that his wife Smt. Bharti is having illicit relations with the applicant. Neither there is anything mentioned in the suicide note to substantiate the suspicion, nor any witness has narrated any incident which may point out that the applicant was having illicit relations with Smt. Bharti.
12. Now, the moot question for determination is that whether the above mentioned suspicion expressed by the deceased in his suicide note can be said to be an abetment of suicide.
13. Section 306 of I.P.C. reads as under :
6 M.Cr.C. No. 8083 of 2016"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 extend to ten years, and shall also be liable to fine.
14. "Abetment" is defined under Section 107 of I.P.C. 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 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.
Illustration A, a public officer, is authorised 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 facilitates the commission thereof, is said to aid the doing of that act."
15. The Supreme Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in 7 M.Cr.C. No. 8083 of 2016 (2009) 16 SCC 605 while dealing with the term "instigation" held as under :
"16. ... 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.
17. Thus, to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the 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' ... to keep irritating or annoying somebody until he reacts...."
16. The Supreme Court in the case of Praveen Pradhan Vs. State of Uttaranchal reported in (2012) 9 SCC 734 held as under :
"17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh ((1991) 3 SCC 1), Surender v. State of Haryana ((2006) 12 SCC 375, Kishori Lal v. State of M.P. ( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti Sree ((2009) 1 SCC 554)
18. In fact, from the above discussion it is 8 M.Cr.C. No. 8083 of 2016 apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced 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 CrPC."
17. The Supreme Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of M.P. reported in (2002) 5 SCC 371 has held as under :
"6. Section 107 IPC defines abetment to mean that a person abets the doing of 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."
Further, in para 12 of the judgment, it is held as under:
"The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation."
18. Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, 9 M.Cr.C. No. 8083 of 2016 incite, urge or encourage to do an act.
19. If the facts of the present case are considered, then it would be clear that there is no allegation either in the suicide note or in the statement of any witness to suggest that the applicant had in any manner instigated the deceased to commit suicide. In fact there is no allegation that the applicant had ever talked to the deceased. Further, the allegation of illicit relation of the wife of the deceased with the applicant is not founded on any evidence but it was merely a suspicion expressed by the deceased. If a wife of a person is on talking terms with some other person, then it would not mean that She is having any illicit relations with that person. If the wife of the deceased was not happy with the behavior of younger brother of the deceased, namely Golu, then, it cannot be said that the applicant had in any manner instigated or shared common intention with co- accused Smt. Bharti to commit offence of abetment of suicide. No overtact has been alleged against the applicant. If the deceased was of the view that his wife is having illicit relations with the applicant, then the normal and natural conduct of the deceased would have been to vacate the house of the applicant. But the fact that the deceased did not vacate the house of the applicant, clearly shows that his suspicion was baseless. Further, it is clear from the record that Smt. Bharti, the wife of the deceased was living with her parents in her parents house and whereas the applicant is the resident of Street No.1, Near Ahmadpur Square, Vidisha. Thus, even if the suicide note is accepted as it is, then it appears that the deceased was hypersensitive, suspicious in nature and very possessive of his wife. He had an apprehension of losing his wife. However, the hypersensitivity, suspicious attitude towards life or 10 M.Cr.C. No. 8083 of 2016 apprehension of losing his wife, cannot be said to be an act on the part of the applicant which may be termed as instigation. Even otherwise, the extra marital relations may be morally wrong, but in absence of any active role or act, it cannot be said that it would amount to abetment of suicide.
20. In the case of Pinakin Mahipatray Rawal v. State of Gujarat reported in ((2013) 10 SCC 48, while dealing with extra-marital relationship, the Supreme Court held as under :
"19. 'Marital relationship' means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide.
* * *
23. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to 'cruelty', but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extramarital relationship 11 M.Cr.C. No. 8083 of 2016 was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide."
*** "27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide."
The Supreme Court on facts and especially referring to suicide note held that one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband and that apart she had exonerated the husband and accordingly it would not come within the scope and ambit of Section 306 IPC."
21. The Supreme Court in the case of Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, reported in (2015) 11 SCC 753, held as under :
"20. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the "Holi"12 M.Cr.C. No. 8083 of 2016
festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (2013)10 SCC 48, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted."
22. The Supreme Court in the case of M. Mohan Vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 has held as under :
"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 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 this act must have been intended to push the deceased into such a position that he/she committed suicide."
As it is evident from the statement of the witnesses, as well as the suicide note, there is no active or direct act on the part of the applicant which may lead the deceased to commit suicide. Thus, it is clear that the allegations as 13 M.Cr.C. No. 8083 of 2016 leveled against the applicant do not prima facie make out a case under Section 306 of I.P.C.
23. There is another aspect of the matter. The deceased left his house on 17-8-2014 and a Gum Insaan Report was lodged by his brother who was staying in the same house. In the Gum Insaan Report there is no mention of recovery of Suicide Note left by the deceased on the table. On 18-8- 2014, the statement of Golu was recorded. He is the younger brother of the deceased, who was sleeping with the deceased Rakesh in the same room. In the said statement, he had stated that a suicide note was found on the table of the room. The father of the deceased, namely Raghuvir had also stated in his statement recorded on 18-8-2014, that he was told by Golu about the suicide note. But surprisingly, the suicide note was produced by Raghuvir on 9-10-2014. If the Suicide Note was already found on the table on 17-8- 2014, then why the father of the deceased did not handover the said suicide note to the police on 17-8-2014 or 18-8- 2014, is an important question which raises doubts with regard to the genuineness of the suicide note. Further, one register which was allegedly in the handwriting of the deceased was also handed over by the father of the deceased to the police on 28-10-2014. Why the father of the deceased did not handover the registers which were allegedly in the handwriting of the deceased on 9-10-2014 itself, is a question which further raises doubt with regard to the genuineness of the Registers. Further, when the deceased was working as Asstt. Secretary, in a Gram Panchayat, then why the police did not seize any document containing the admitted handwriting of the deceased from his office?
24. Further, from the charge sheet, it appears that the 14 M.Cr.C. No. 8083 of 2016 alleged suicide note was sent to handwriting expert on 12- 11-2014. The charge sheet was filed 24-12-2015, but inspite of expiry of more than one year, no report from the handwriting expert could be obtained. Even the learned Counsel for the State was not in a position to submit that whether the report of the handwriting expert was received or not? Thus, the prosecution has failed to prima-facie prove that the so called suicide note was in the handwriting of deceased Rakesh.
25. On consideration of the facts and circumstances of the case, this Court is of the considered view that the ingredients of "abetment" are missing. Thus, it is held that even if the entire allegations are accepted, even then, no prima facie case making out a case under Section 306 of I.P.C. would be made out against the applicant.
26. Thus, the prosecution of the applicant for offence under Section 306 read with Section 34 of I.P.C. is hereby quashed and consequently, the criminal proceedings pending against the applicant for offence under Section 306/34 of I.P.C. are quashed. The petition under Section 482 of CrPC is hereby allowed.
27. A copy of this order, be send to the Trial Court for necessary information and compliance.
(G.S. AHLUWALIA) Judge (22.12.2016)