Madhya Pradesh High Court
Rinku Goswami vs The State Of Madhya Pradesh on 25 April, 2017
1 MCRC 1047/2017
(Rinku Goswami vs. State of M.P. & Anr.)
25.4.2017
Shri Aditya Singh Ghuraiya, Counsel for the applicant.
Shri B.P.S. Chauhan, Public Prosecutor for the
respondent No.1/State.
The case diary is not available.
On 27.2.2017 and 15.3.2017, the case diary was not available. The applicant has already filed a copy of charge sheet on record. As sufficient time was given to the State to produce the case diary and because of failure on the part of the State to produce the case diary, therefore, with the consent of the parties the case is heard on the basis of the charge sheet filed by the applicant.
This petition under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No. 16/2009 registered by Police Station Civil Lines, Datia District Datia for offence punishable under Section 306/34 of IPC as well as the charge sheet and the criminal proceedings pending before the Court of CJM, Datia.
The prosecutions' story in short is that on 29.1.2009 at about 16:00, the dead body of an unknown boy aged about 18 years was found on the railway track. Information to police was given by one Ram Singh, the Gang Man, who was on patrolling. On the basis of the information given by Ram Singh, Dehati Merg Intimation was registered. The dead body was sent for postmortem. After the postmortem, the dead body was buried on 31.1.2009.
On 30.1.2009, Chandrabhan Singh, lodged a Missing Person Report in Police Station Kotwali, Daita. It was 2 MCRC 1047/2017 alleged that his younger brother had left the house for getting his pant darned. At the shop of Goswami, he came to know that his brother was beaten by applicant and the co-accused gave a telephonic information to the family members that Daulat Singh Dangi is sitting in his shop. After getting information from his family members, he immediately went to the shop of Goswamiji, where he was informed that his brother has already left. Thereafter, they searched for Daulat Singh Dangi at various places, however, his whereabouts could not be known. Therefore, a Missing Person Report was lodged. Later on, Virendra Singh identified the shoes, clothes belonging to the deceased as that of his nephew Daulat Singh (deceased). At the request of Virendra Singh the dead body was digged out. Thereafter Chandrabhan Singh identified the dead body as that of his brother Daulat Singh. DNA test of the dead body was also got conducted and according to DNA test report the deceased Daulat Singh was Biological son of Malkhan and Rajeshwari.
After conducting the Merg Enquiry a FIR was registered against accused and the co-accused. It was found that the deceased had committed suicide by jumping in front of running train. Charge sheet for offence punishable under Section 306 of IPC was filed against the applicant on the ground that the deceased has committed suicide because of the beating given by the applicant. No charge sheet was filed against the co-accused on the ground that he was not present on the spot at the time of alleged beating.
An application was filed before the Court of 3 MCRC 1047/2017 Magistrate under Section 190 of Cr.P.C., praying that the cognizance against the co-accused be also taken for offence punishable under Section 306/34 of IPC. However, the said application was rejected on the ground that as the offence is triable by Sessions Court, therefore, the application is not maintainable. A criminal revision was filed which was allowed and the matter was remanded back for decision afresh on the application under Section 190 of Cr.P.C.
By order dated 15.7.2011 the Magistrate took cognizance against the co-accused for offence punishable under Section 306/34 of IPC. The said order was challenged before the Revisional Court. The Revisional Court dismissed the revision. Being aggrieved by the order of the Revisional Court, the petition under Section 482 of Cr.P.C. was filed, which was registered as M.Cr.C. No. 6727/2011.
This Court by order dated 22.12.2016 passed in M.Cr.C.No. 6727/2011 considered the allegations on merits and found that the act of the co-accused cannot be said to be an abetment of suicide. Accordingly, the petition filed by the co-accused Manoj under Section 482 of Cr.P.C. was allowed by this Court by order dated 22.12.2016 passed in M.Cr.C.No. 6727/2011 by holding as under:-
"34. In the present case the police has seized the so called love letter written by the deceased Daulat Singh Dangi to the daughter of Kamlesh. Thus, the allegation of the witnesses that the deceased was scolded/beaten because of the fact that he had given a love letter to the daughter of Kamlesh is found corroborated by the love 4 MCRC 1047/2017 letter so seized by the police. In the present case it is also apparent from the statements of Munna Khan and Jaswant Singh Yadav that one boy had committed suicide in front of them by jumping in front of running train. Thus, it is clear that there is no corroborative evidence on record to substantiate the allegation of last seen together or putting the body of a boy on the railway track as stated by Balbir Singh and Ram Kishore who are admittedly friend/known to Virendra Singh. Accordingly, the Trial Court did not commit any illegality in not taking cognizance for offence punishable under Section 302 of IPC.
35. The only evidence which has come on record against the present applicant is that he had made a telephonic call to the family members of Daulat Singh informing them about the conduct of Daulat Singh of writing a love letter to a girl. By no stretch of imagination, it can be presumed that the applicant in any manner instigated or abetted the deceased to commit the suicide. The Trial Court by order dated 15.7.2011 while taking cognizance against the applicant for offence punishable under Section 306/34 of IPC has observed that the name of the applicant along with the co-accused Rinku is specifically mentioned in the FIR. The first set of evidence is that those persons who had seen the deceased Daulat Singh Dangi for the last time in the company of the applicant and the co- accused Rinku Goswami. Another set of evidence is with regard to the presence of the applicant in Jhansi. Thereafter by merely mentioning that there is a prima facie evidence against the applicant for taking cognizance under Section 306/34 of IPC, the Magistrate took cognizance under Section 306/34 of IPC against the applicant. The Trial Court did not consider the fact or 5 MCRC 1047/2017 gave any reason as to how the allegations made against the applicant amounts to instigation or abetment. Similarly, while dismissing the criminal revision the Revisional Court has not taken into the consideration the facts and the allegations for coming to a conclusion that whether the conduct of the applicant amounts to instigation or abetment of suicide or not?
36. Considering the allegations which have come against the applicant, it is clear that the applicant had not taken any active role or had in any manner provoked the deceased to commit suicide. If the deceased had given a love letter to a girl and thereafter he was scolded or even beaten by the shopkeepers, and making a complaint to the family members of the deceased about the conduct of the deceased of giving love letter to a girl cannot be said to be an act which may amount to instigating the deceased to commit suicide.
37. Considering the facts and circumstances of the case, it appears that the deceased was hypersensitive to ordinary petulance. It appears that the deceased was afraid of his family members because a complaint was already made to his family members about the conduct of the deceased of handing over a love letter to a girl. In such a situation, if the deceased committed suicide, it cannot be said that the applicant in any manner committed an offence of an abetment of suicide. In the present case the ingredients of abetment of suicide are not present. As it is evident from the statement of the witnesses, 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 leveled against the applicant do not prima facie make out a case under Section 306 of I.P.C. Therefore, this Court is 6 MCRC 1047/2017 inclined to exercise its powers under Section 482 of Cr.P.C. The order dated 15.7.2011 passed by Chief Judicial Magistrate, Datia in Criminal Case No. 2665/2011 and the order dated 9.9.2011 passed by First Additional Sessions Judge, Datia in Criminal Revision No.71/2011 are hereby quashed. Consequently, further proceedings against the present applicant also stands quashed. The application is allowed."
It is submitted by the counsel for the applicant that the only allegation against the applicant is that after the love letter was given by the deceased to the daughter of Kamlesh, he was beaten by the applicant. Although there is no direct evidence to show that the applicant had ever beaten the deceased but the statements of some of the witnesses have been recorded by the police to the effect that they were informed by the shopkeepers that the deceased was beaten by the applicant. Although it is submitted by the counsel for the applicant that in absence of any substantive or direct evidence with regard to the beating given by the applicant to the deceased, merely on the basis of the hearsay evidence of the witnesses, it cannot be said that the applicant had ever beaten the deceased after the deceased gave a love letter to the girl. It is further submitted by the counsel for the applicant that even assuming that after the love letter was given by the deceased to the girl and because of that if the deceased was scolded or beaten, then by no stretch of imagination it can be said that the applicant in any manner abetted the deceased to commit 7 MCRC 1047/2017 suicide.
Per contra, it is submitted by the State Counsel that the applicant had created such a situation before the deceased where he was left with no other option but to commit suicide because he was insulted in the General Public by the applicant.
Heard the learned counsel for the parties. The moot question is that even if the entire allegations are accepted as they are then whether can it be said that the applicant has committed an offence of abetment of suicide.
Section 306 of I.P.C. reads 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.
"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.8 MCRC 1047/2017
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."
The Supreme Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in (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 9 MCRC 1047/2017 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...."
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 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 10 MCRC 1047/2017 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."
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."11 MCRC 1047/2017
The Supreme Court in the case of Gangula Mohan Reddy Vs. State of A.P. reported in (2010) I SCC 750 needs mentioned here. In which 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 IPC, there has to be a clear mens rea to commit offence - It also requires an active act or direct act 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 circumstances 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 circumstances of case, none of the ingredients of offence under Section 306 made out - Hence, appellant's conviction, held unsustainable".
In the case of State of W.B. Vs. Orilal Jaiswal, reported in 1994 (1) SCC 73, the Supreme Court has held as under:-
"This Court has cautioned that the Court 12 MCRC 1047/2017 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 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 that accused charged of abetting the offence of suicide should be found guilty"
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."
The Supreme Court in the case of Kishori Lal vs. 13 MCRC 1047/2017 State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:-
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct 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."
In the case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme Court has held as under:-
"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 14 MCRC 1047/2017 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 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.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
14. The expression 'abetment' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause 'thirdly' of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out 15 MCRC 1047/2017 as provided for under Section 107 IPC.
15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows:
"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."
16. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC."
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, incite, urge or encourage to do an act.
In the present case the police had seized the so called love letter written by the deceased, daughter of Kamlesh. It is not the case of the prosecution that the deceased was beaten by the applicant because of his old enmity. Even if it is accepted that the applicant had beaten the deceased after he gave a love letter to the daughter of 16 MCRC 1047/2017 Kamlesh, then at the most it can be said that it was spontaneous reaction of the applicant in beating the deceased. There is also the statements of the witnesses to the effect that the relatives of the deceased had also come on the spot and they have also scolded the deceased of giving a love letter to the daughter of Kamlesh.
Be that as it may. The centripetal question for consideration before this Court is that when the deceased gave a love letter to the daughter of Kamlesh which was not accepted by the daughter of Kamlesh and on her raising shouts the deceased was caught hold by the shopkeepers and even if it is accepted that the deceased was beaten by the applicant then whether it would amount to abetment of suicide or not.
Under the facts and circumstances of the case, it is clear that the beating, if any, given by the applicant was a direct result of the handing over of love letter by the deceased to the daughter of Kamlesh and it was the spontaneous reaction. If somebody is teasing or harassing a girl on a public road and if it is objected by the by- passers or the shopkeepers and even assuming that the person is given a beating because of his act without any intention that the deceased should commit suicide then by no stretch of imagination it can be said that the applicant had ever abetted the deceased to commit suicide.
It appears that the deceased was hypersensitive to ordinary petulance and it appears that the deceased was afraid of his family members because a complaint was already made to his family members about his conduct of handing over a love letter to a girl, therefore, he 17 MCRC 1047/2017 committed suicide. Even if the entire allegations are accepted then this Court is of the considered opinion that no prima facie case is made out against the applicant for offence under Section 306 of IPC. Therefore, the prosecution of the applicant for an offence under Section 306 of IPC would be nothing but an abuse of process of law. Accordingly, the FIR in Crime No.16/2009 registered by Police Station Civil Lines, Datia as well as the criminal proceedings in Criminal Case No.667/2009 pending in the Court of CJM, Datia are hereby quashed.
It is not out of place to mention here that when the co-accused Manoj filed a petition under Section 482 of Cr.P.C., the record of the Trial Court was summoned and, therefore, no proceedings took place before the court below.
Accordingly, this petition succeeds and is hereby allowed.
(G.S. Ahluwalia)
(alok) Judge