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Madhya Pradesh High Court

Mathura Singh Gaharwar vs The State Of Madhya Pradesh on 25 October, 2016

Author: S.K. Gangele

Bench: S.K. Gangele

                                         Cr.A. No.1675 of 2005

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HIGH COURT OF MADHYA PRADESH PRINCIPAL
           SEAT AT JABALPUR

            Criminal Appeal No.1675 of 2005


Mathura Singh Gaharwar                            appellant

                           versus

State of Madhya Pradesh                        respondent
Coram :
Hon'ble Shri Justice S.K. Gangele
===========================================
     Shri P.R. Bhave, learned Senior Counsel assisted by
Shri Prabhakar Singh and Shri Bhanu Yadav, learned
counsel for the appellant.
     Shri Ajay Tamrakar, learned Panel Lawyer for the
respondent/State.
===========================================
Reserved on : 06.10.2016

                       *********
                   JUDGMENT

(Pronounced on :25.10.2016) Per S.K. Gangele, J.

Appellant has filed this appeal against the judgment dated 10.08.2005 passed in Sessions Trial No.31/2005. Appellant and another person Kamleshwar Singh Chandel (K.S. Chandel) were prosecuted for commission of offence punishable under Section 306 of the Indian Panel Code. The trial Court acquitted the accused K.S. Chandel. The appellant has been held guilty for commission of offence Cr.A. No.1675 of 2005 2 punishable under Section 306 of the IPC and he has been awarded a sentence of RI 10 years and fine of Rs. 5000/-.

2. Deceased Indramani Singh committed suicide on 31.07.2003 by hanging. He was working as Middle School Teacher at village Etma. He was assigned duty to identify the persons living below poverty line. Mr. K.S. Chandel was supervisor of the work. It is alleged that the present appellant had used undue force on the deceased to add the names of certain persons in the list and due to the aforesaid act, deceased committed suicide by hanging.

3. PW-1 - Kamlesh Singh, who is the brother of the deceased, deposed that the deceased was his brother and he committed suicide by hanging on 30 th August, 2003 and I lodged the FIR at the police station. Deceased returned to his house at 8 or 9 O'Clock in the evening. He had taken his meal. The family members, next day came to know that deceased had committed suicide. The wife of the deceased was living separately for the last three-four years.

4. PW-2 - Arun Kumar, who is the son of the deceased, deposed that his father used to harass his mother after drinking liquor, hence, he alongwith his mother were living separately for the last three years.

5. PW-3 - Dharmendra Singh deposed that deceased was Cr.A. No.1675 of 2005 3 working with him as Teacher. His duty was assigned to identify the persons living below poverty line at village Shivgarh and Etma of Gram Panchayat Etma. Mr. K.S. Chandel was the supervisor. Mr. Indramani came on 30th July to deposit the record at Deosar, however, the record was incomplete, so, he returned back. Deceased had handed over him the list of the persons living below poverty line and requested him to get it verified the same by the Executive Officer. On the next day I came to know that the deceased had died.

6. PW-6 - Heeralal deposed that the duty of the deceased was assigned to identify the persons living below poverty line at village Etma. His duty was also assigned with the deceased. The appellant, who had posed himself as Incharge Supervisor, directed the deceased and him to deposit the list in block office. Thereafter, the appellant posed himself as K.S. Chandel and told them that the record is incomplete and directed them to complete the record. Deceased had told him that he was distraught and his record be deposited. He further deposed that the deceased had also apologized with the action "उसकके ससामनके कसान पकड़कर उठक बबैठक ककयके और ररो रहके थके" and thereafter, deceased returned to his house and next day I came to know that deceased had died.

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7. PW-8 - Dr. C.S. Singh, who is the doctor who conducted the postmortem. PW-12 - Ramesh Chandra Bansal is the Investigating Officer.

8. The substantive evidence, on which conviction is based is of PW-7 - Jagbandan Singh. He deposed that the present appellant himself posed as Supervisor namely Mr. K.S. Chandel and directed the deceased to correct the record because there were some mistakes in the record. Thereafter, the deceased requested the present appellant to verify his list and permit him to deposit the record in the office. He specifically deposed that before the present appellant, deceased was weeping and he had apologized with the action "उसकके ससामनके कसान पकड़कर उठक बबैठक ककयके ", even this version of the witness be accepted, then whether the offence under Section 306 of IPC is made out against the appellant or not.

9. The Apex Court in the matter of Amalendu Pal @ Jhantu vs. State of West Bengal, (2010) 1 SCC 707 has held as under about ingredients and evidence which is necessary for holding a person guilty for an offence punishable under Section 306 of the IPC :

"9. At the outset, we intend to address the issue regarding the applicability of Section 306 IPC in the facts of the present case. Section 306 deals with abetment of suicide and Section 107 deals with abetment of a thing.

They read as follows:

"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."

"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 facilitates the commission thereof, is said to aid the doing of that act."

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 (2004) 13 SCC 129 as follows in paras 12 and 13:

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"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.(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 Cr.A. No.1675 of 2005 7 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."

[See also Kishangiri Mangalgiri Swami v. State of Gujarat (2009) 4 SCC 52]

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 Cr.A. No.1675 of 2005 8 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."

10. The legal principle emerges from the judgment of the Apex Court in which earlier judgments have also been considered that 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, the conviction in terms of Section 306 of IPC is not sustainable.

11. In the present case, evidence of PW-7 is that the present appellant himself posed as Supervisor and he had directed the deceased to correct the record and the list was not accepted. The deceased was weeping and he had apologized in front of appellant. There is no evidence that the present appellant had instigated the deceased or said the deceased to commit suicide. Hence, in such circumstances, in my opinion, conviction of the appellant for commission of offence punishable under Section 306 of the IPC is unsustainable.

12. Consequently, the appeal filed by the appellant is allowed. The conviction and sentence of the appellant for commission of offence punishable under Section 306 of the Cr.A. No.1675 of 2005 9 IPC is hereby set aside. The sentence awarded by the trial Court is also hereby set aside. The bail bonds of the appellant are hereby discharged.

(S.K. GANGELE) JUDGE vkt Cr.A. No.1675 of 2005 10