Madhya Pradesh High Court
Hemchand Yashwant Fasatey vs The State Of Madhya Pradesh on 23 February, 2018
The High Court of Madhya Pradesh
Cr.R. No. 208/2018
2
Jabalpur, Dated: 23/02/2018
Shri Atul Choudhari, learned counsel for the petitioner.
Shri C.K. Mishra, learned G.A for the respondent/State.
Heard.
This revision under Section 397 read with Section 401 of the Cr.P.C has been filed to assail the order dated 22.08.2017 passed by Sessions Judge, Hoshangabad in S.T. No. 251/2016 wherein charges have been framed against the petitioner for offence under Section 306 of I.P.C.
2. Bereft of the unnecessary details, the facts requisite for disposal of this revision are that Sanjay Fasate, resident of Chandan Nagar, Rasuliya, Hoshangabad had advanced loan of Rs.2,00,000/- to the accused persons including the petitioner- Hemchand and co-accused Anand Jugani. The accused persons did not repay the amount. This amount was borrowed by the deceased from Bank and other persons. Because the amount was not refunded, the deceased was felt harassed. He killed his wife Priti Fasate aged forty years and daughter Simmi Fasate aged ten years by means of knife and committed suicide by hanging himself.
3. Post mortem report of Priti Fasate discloses that death was caused due to shock as a result of excessive bleeding from the head injury and the injuries were antemortem in nature. The post mortem of Simmi shows that death was caused due to shock as a result of excessive bleeding from head injury. The post mortem report of Sanjay Fasate also shows that death was caused due to asphyxia as a result of constriction around the neck and there was no evidence of poisoning also.
4. A suicide note was later recovered during the investigation. It was found that deceased Sanjay killed his wife, daughter and committed suicide because of the harassment caused to him by the petitioner and co-accused Anand Jugani.
5. Police after completion of the investigation filed the charge sheet under Section 306 read with Section 34 of I.P.C. The learned trial Court framed charge by the order impugned for offence under Section 306 of I.P.C.
6. On behalf of the petitioner, it is argued that as per the allegations, the petitioner borrowed Rs.2,00,000/- from the deceased and the same was not repaid. Even if the entire evidence is taken into consideration as it is, there was no question of "abetment of suicide." The petitioner has not met with the deceased just before the incident. Hence, the offence under Section 107 of I.P.C is prima facie not made out. Therefore, offence under Section 306 is also not made out.
7. Counsel for the respondent/State vehemently opposed the contentions and submits that because of not refund of the amount, the deceased felt harassed and because of this harassment, he committed suicide having no other alternative except to commit suicide.
8. Perused the case diary.
9. The suicide note recovered was found to be the note written by the deceased which is as under.:-
^^eSa viuh ethZ ls vkRegR;k dj jgk gWwA blds fy, ftEEksnkj esjs nksLr vkuUn tqxkuh esfMdy rFkk esjs pkpk gsepUnz jko QlkVs dk ifjokj ftudh eSa yksxksa ls dtZ ysdj enn djh gSA vc tc dtZ nsus dh ckr vk jgh gSa rks ns ugha ik jgs gSaA eSa cgqr ijs'kku gwWA dtZnkj yksx esjh tku [kk jgs gSA esjs ikl nsus dks iSls ugha gSA ikik vki efu dk /;ku j[kuk esjk le; iwjk gks x;k gSA vkuUn dks ltk feyuh pkfg, cgqr yksxks dks ijs'kku djds j[kk gSA enn djuk csdkj gSA lkgq th eq>s eki dj nsukA ikik vki efu dk /;ku j[kuk^^
10. In this context, it would be appropriate to understand the provisions of Section 306 of I.P.C which is 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 extend to ten years, and shall also be liable to fine.
It is also necessary to understand what actual constitute "abetment." "Abetment" has been defined under Section 107 of I.P.C., which is 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 willful misrepresentation, or by willful 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 No. 2: Whoever, either prior to or a 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."
11. The facts narrated in the present case shows that the deceased had borrowed certain money and given to the accused persons, who failed to repay the same to the deceased. Therefore, the deceased was repeatedly asking to repay the same. But the deceased when not received the repayment had no other alternative except to commit suicide. The deceased had borrowed loan from the State Bank of India for a house at Pink Avenue Colony. He was to pay the E.M.I @ Rs.18,000/- p.m for the same. Deceased- Sanjay was working at SPM as Assistant Manager. The loan amount was not repaid. Therefore, deceased was upset. The accused/petitioner was a friend of the deceased. There has been no other substantial evidence as regarding the harassment or any instigation by the petitioner.
12. All other witnesses have stated that there was no enmity or any sort of any discontent in the family. The statement of Priti Mazumdar and Smt. Sachibala Pure also show that there was cordial relationship between the husband and wife.
13. The deceased committed suicide after killing his wife and daughter. In this stage it would be appropriate to consider the question of "abetment."
14. "Instigation" has been discussed by the Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618, wherein it has been held that:-
"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."
15. In the case of M. Mohan Vs. State, AIR 2011 SC 1238, the Hon'ble Apex Court has held that:-
"45. 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."
16. 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 of I.P.C, 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."
17. The question of "abetment" has also been considered by the Hon'ble Apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, (2010) 1 SCC 750 in which the Hon'ble Apex Court has held that:-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing- Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained- In order to convict a person under Section 306, there has to be a clear mens rea to commit offence- It also requires an active act or direct which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide- Also, reiterated if it appears to Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty-
Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in day-to-day life- In facts and circumstances of case, none of the ingredients of offence under Section 306 made out- Hence, appellants conviction, held unsustainable."
18. The deceased also seems to be hypersensitive. In the present case, evidence collected by the prosecution indicates that there is no overt act fall within the purview of Sections 107 and 109 of I.P.C, therefore, prima facie offence under Section 306 if not made out.
19. In the case of Pramod Kumar & Ohters Vs. State of M.P, 2007 (II) M.P.W.N 26, it has been held that:-
"The accused persons borrowed huge amount of money but, subsequently, incurred losses. One of the accused was liable to make good all the losses but he did not do so. The accused had also advanced money to them but when the deceased did not repay the money, they harassed and intimidated, because of which the deceased committed suicide. The Court held that charge under Section 306 of I.P.C is not made out. Therefore, the charge framed under Section 306 of I.P.C was set aside."
20. In the present case also, the deceased instead of taking legal and legitimate action has adopted an escapist course of committing suicide in order to revenge from his alleged tormentors. Therefore, no offence as alleged is made out against the petitioner.
21. In the case of Ramchandra Vs. State of M.P., 2009 (2) M.P.L.J, 147, it has been held that:-
"The deceased committed suicide on account of playing dishonesty in a transaction of loan by the petitioner. The act as alleged against the petitioner does not amount to instigation nor constitutes aid in commission of the suicide by the deceased. Order framing charge against the petitioner for offence under Section 306/34 of I.P.C was set aside."
22. Keeping in view the above circumstances and the facts discussed above, this Court is of the opinion that the enunciation of law and preceding analysis indicate that the element of instigation or abetment to commit suicide is completely missing. Therefore, offence under Section 306 of I.P.C is not made out. This revision is allowed. Order dated 22.08.2017 passed by Sessions Judge, Hoshangabad in S.T. No. 251/2016 is set aside.
23. Petitioner- Hemchand is discharged from the offence under Section 306 of I.P.C. However, it is observed that if the prosecution deem fit, the prosecution may proceed against the petitioner for other offence/s.
(Sushil Kumar Palo) JUDGE awinash Digitally signed by AWINASH CHANDRA Date: 2018.02.23 19:27:12 +05'30'