Madhya Pradesh High Court
Vinod Patel vs The State Of Madhya Pradesh on 24 February, 2021
Author: Jagdish Prasad Gupta
Bench: Jagdish Prasad Gupta
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB: HON'BLE SHRI JUSTICE J.P. GUPTA
Criminal Appeal No.2388/2008
Keshlal Rajak
Vs.
State of Madhya Pradesh
&
Criminal Appeal No.2375/2008
Vinod Patel and two others
Vs.
State of Madhya Pradesh
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Ms. Manjeet S. Chuckal, Advocate for the appellants.
Shri Vinod Mishra, P.L. for the respondent / State.
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JUDGMENT
(Delivered on 24th day of February, 2021) This judgment shall govern the disposal of aforesaid both criminal appeals as these appeals have been preferred against the same judgment.
1. These appeals have been filed under section 374 (2) of the Code of Criminal Procedure by the appellants challenging the impugned judgment of conviction and order of sentence dated 11.11.2008 passed by learned 16th Additional Sessions Judge, Jabalpur in Sessions Trial No. 269/07; whereby the appellants have been convicted under Section 306 of the IPC and each of them has been sentenced to undergo RI for 7 years along with fine of Rs.1000/- with default stipulation as mentioned in the impugned judgment.
2. In brief, relevant facts of the case are that, on 26.5.2006 at 2 Cr.A.No.2388/08 & 2375/08 17:00 O'clock Police Station Omti received an information from Victoria Hospital with regard to death of one Kisanlal S/o. Laxman Prasad Prajapati, Aged about 50 years, R/o. Village Nai Basti, Kusner, due to consuming some poisonous substance, upon which, Police Station Omti registered a marg no. 0/06 under Section 174 of Cr.P.C. and thereafter, sent it to the Police Station Panagar for further investigation and after marg inquiry, crime no.346/06 was registered under Section 306/34 of the IPC against the appellants/ accused. During investigation, Police recovered a suicide note, Ex.P/22, from a pocket of the deceased alleged to have been written by the deceased himself, in which, it is alleged that the present appellants are responsible for his death as the appellants got him financed a tractor from the Bank and also harassed and tortured him for payment of installments. It is also alleged that the deceased was entered into an agreement with one Chetram, resident of the same village, for payment of the installments of the tractor and the tractor was also handed over to him but the installments were not being paid, therefore, he was under pressure and tensed. On completion of formalities of investigation, charge sheet was filed against the appellants for the offence under section 306/34 of the IPC in the court of JMFC, Jabalpur who on its turn committed the case to the court of Session for trial.
3. On committal of the case, the learned Sessions Judge framed charge for the offence under section 306 of the IPC against the 3 Cr.A.No.2388/08 & 2375/08 appellants but the appellants / accused abjured their guilt and on examination under section 313 of the Cr.P.C. stated that they have been falsely implicated in the case but no evidence in defence has been adduced. However, the learned trial court by its impugned judgment convicted and sentenced the appellants as mentioned earlier. Hence, these appeals have been filed by them.
4. The aforesaid judgment of conviction and order of sentence has been challenged by appellants on the grounds that learned trial court has not appreciated the evidence in accordance with law. The prosecution case is mainly based on the so called suicide note Ex.P/22, about which, close relatives of the deceased Gopal Prasad Prajapati (PW-6) has stated that it was given by Kallu Prajapati (PW-4). While Kallu Prajapati (PW-4) has denied the fact that it was given by him to Gopal Prasad Prajapati (PW-6) and the suicide note Ex.P/22 has not been legally proved to be written by the deceased as there is no handwriting expert report in the record despite of sending the document to the handwriting expert and Gopal Prasad Prajapati (PW-6) has not stated that on what basis he claimed that he is acquainted with the handwriting of the deceased. In the circumstances, suicide note Ex.P/22 cannot be said to be written by the deceased. Apart from it, if the same is found to be proved then it only discloses a dispute with regard to transaction of the money and on the basis of the dispute it cannot be said that the appellants instigated the deceased to commit 4 Cr.A.No.2388/08 & 2375/08 suicide. Therefore, no offense under Section 306 of the IPC is made out against the appellants and the finding of the trial Court deserves to be quashed.
5. Learned PL has opposed the contentions of learned counsel for the appellants and supported the finding of learned trial court and prayed that the appeals be dismissed.
6. It is not disputed in the case that on 26.5.2006 at 17:00 O'clock the deceased Kishanlal consumed some poisonous substance, because of which, he succumbed to his last breathe and the fact of death of the deceased has been proved by the statement of Dr. Abhishek Singh (PW-17) who was posted at Medical college, Jabalpur, conducted autopsy on the body of the deceased and stated that one Constable Kamod Kumar (PW-7) posted at Police Station Panagar, brought a dead body of the deceased Kishanlal S/o. Laxman Prajapati, Aged about 50 years, R/o. Village Nai Basti, Kusner, for postmortem and after examination, the doctor gave postmortem report which is Ex.P/21 and as per report, cause of death of the deceased is unknown. A viscera was preserved for chemical examination and it was sent to the FSL, Sagar and as per FSL report, the deceased died due to consuming some poisonous substance i.e. aluminum phosphate. The statements of the prosecution witnesses as well as the postmortem report and FSL report and other relevant documents with regard to death on account of consuming some poisonous substance by the deceased are reliable and 5 Cr.A.No.2388/08 & 2375/08 believable and learned counsel for the appellants has also not challenged their veracity. Hence, it is held that the deceased died on 26.5.2006 at 17:00 O'clock by consuming some poisonous substance, in other way, he committed suicide.
7. Learned trial Court has found the offence proved on the basis of the evidence of Gopal Prasad Prajapati (PW-6) who has claimed to get the suicide note Ex.P/22 from Kallu Prajapati (PW-4) and it is said to have been written by the deceased. But the statement of Gopal Prasad Prajapati (PW-6) is not credible as Kallu (PW-4) has denied the fact that he got the suicide note Ex.P/22 and handed over it to Gopal Prasad Prajapati (PW-6). Similarly, Gopal Prasad Prajapati (PW-6) has not stated the facts and circumstances with regard to claiming about acquaintance of the handwriting of the deceased. In this regard, mere relationship is not sufficient to infer the fact that only because he was in-law of the deceased he would be aware of the handwriting of the deceased. In the present case, during the investigation the suicide note was sent for the opinion of the handwriting examiner but the prosecution has failed to submit and prove the report. This circumstance would go against the prosecution and it will be deemed that if it had been filed, it would not have supported the prosecution version. In the circumstances, in this case it cannot be said that the prosecution has proved beyond reasonable doubt the fact that the document Ex.P/22 was written by the deceased. Apart from it, for the 6 Cr.A.No.2388/08 & 2375/08 sake of arguments if it is presumed that the document Ex.P/22 has been proved, the same is not sufficient to establish the fact that the appellants instigated the deceased to commit suicide. The suicide note discloses the fact that the deceased purchased a tractor on loan and was unable to pay the loan amount. Thereafter, he sold the tractor to one Chetram (PW-9) with the condition that he will pay installments of the loan but Chetram did not pay the loan and the appellants were instigating the deceased to pay the loan amount, due to this pressure the deceased committed suicide. The aforesaid circumstance shows that the deceased committed suicide on account of the aforesaid reason but it cannot be said that the appellants harassed or committed aforesaid misdeed with a view to compel or instigate the deceased to commit suicide, in other words, the aforesaid fact does not constitute abetment of suicide.
8. Learned counsel for the applicants has placed reliance on a judgment of the Hon'ble Apex Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police (2011) 3 SCC 626, in which the ingredients of offence of Section 306 IPC have been discussed and clarified. The relevant paras no. 36 to 45 of the judgment are reproduced here 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 7 Cr.A.No.2388/08 & 2375/08 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 - 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 places in pursuance 8 Cr.A.No.2388/08 & 2375/08 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 order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
41. This Court in paragraph 20 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 9 Cr.A.No.2388/08 & 2375/08 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."
In the said case this court came to the conclusion that there is no evidence and material available on record where from an inference of the accused- appellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn.
42. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73, this Court has cautioned that 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.
10 Cr.A.No.2388/08 & 2375/08
43. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, 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 sociability pattern is different from the others. Each person has his own idea of self- esteem and self-respect. Therefore, it is 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."
9. In view of the aforesaid verdicts of the Apex court, in the 11 Cr.A.No.2388/08 & 2375/08 present case it cannot be deemed that the appellants had mens rea to instigate the deceased to commit suicide. They cannot be held liable for instigating to commit suicide by the deceased.
10. In the result, the finding of the learned trial court that the prosecution has succeeded to prove the charge, is erroneous. Therefore, the prosecution has failed to prove the charge under section 306/34 of the IPC. Hence, the impugned judgment of conviction and sentence is liable to be set-aside.
11. Consequently, the aforesaid both these appeals are allowed and the impugned judgment dated 11.11.2008 passed in ST No.269/07 is hereby set-aside. The appellants are acquitted from the charge levelled against them. The appellants are on bail, their bail bonds stand discharged.
(J.P.Gupta) Judge JP/-
Digitally signed by JITENDRA KUMAR PAROUHA Date: 2021.02.24 17:42:04 +05'30'