Madhya Pradesh High Court
Bhimsingh @ Bhimasingh vs The State Of Madhya Pradesh on 13 December, 2017
1
THE HIGH COURT OF MADHYA PRADESH
Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.)
Cr.R. No.346/2017
(Bhimsingh @ Bhimasingh & Ors. vs. The State of Madhya Pradesh)
Indore, Dated: 13/12/2017
Shri Kaushal Sisodiya, learned counsel for the
petitioner.
Shri Rajesh Mali, learned Public Prosecutor for
the respondent / State.
This revision petition preferred under Section 397/401 of Code of Criminal Procedure, 1973 (for short 'the Code') calls in question the legality, propriety and correctness of order dated 16/02/2017 passed by 4th Additional Sessions Judge, Indore in Sessions Trial No.03/2017, whereby the charge for offence u/s. 306 read with Section 107 of the IPC has been framed against the petitioners.
02. As per prosecution, one Babloo, aged about 21 years, son of Mohan Bhil, committed suicide on 26th November, 2016 by jumping into a well. A merg, in this regard was registered. On enquiry, it was found that motorcycle bearing registration No.MP 11 MH 3397, belonging to petitioner No.2-Kalu, has been taken by deceased-Babloo without his permission. Deceased-Babloo went on this motorcycle to his in-laws house. There was some damage to the motorcycle. After Babloo came back on 26/11/2016, he was beaten and assaulted by Bhim Singh, Kalu and Rajesh, who also threatened him that they will lodge a report against him in police and will see that he is 2 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) detained in jail and that they will further defame him that he has committed theft of the motorcycle. As per prosecution, feeling harassed and humiliated, Babloo ended his life by jumping into the well.
03. It is submitted by the learned counsel for the petitioner that there is no allegation against the petitioners that they ever incited, provoked, instigated, encouraged or suggested the deceased to commit suicide. It is further submitted that as per prosecution story, as the deceased has taken the motorcycle of petitioner No.2-Kalu, without his permission, he was assaulted and beaten, however, that by itself cannot amount to abetment to commit suicide. It is also submitted that no threat was given by the petitioners to Babloo that they will lodge a report against him with the police with regard to theft of motorcycle and that he will be defamed in the village for committing theft, however, even if all these allegations made against the petitioners are taken to be correct, still an offence under Section 306 read with Section 107 of IPC for abetment to commit suicide is not made out, prima-facie against the petitioners, because there is nothing to indicate that at any point of time, the petitioners have encouraged, instigated, incited, provoked or goaded the deceased to commit suicide. The contention is that the learned trial Court, while framing the charge, has not taken into consideration the relevant legal and factual aspects of the case. It is also submitted that as necessary ingredients to 3 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) constitute offence under Section 306 read with Section 107 of IPC are totally missing, therefore, the impugned order, cannot be sustained.
04. Per Contra, it is submitted by the learned Public Prosecutor that the deceased was badly assaulted and beaten by the petitioners and he was further threatened to be defamed in the locality as thief, therefore, feeling harassed, insulted and humiliated, the deceased committed suicide and that in the facts and circumstances of the case, prima-facie, an offence under Section 306 read with Section 107, is made out against the petitioners, therefore, it cannot be said that learned trial Court has committed an error in framing charge for offence under Section 306 read with Section 107 of IPC.
05. Heard the learned counsel for the parties and perused the record.
06. As regards offence under Section 306 of IPC, we can usefully refer to the decision rendered by this Court in M.Cr.C. No.1742/2016 (Bittu @ Girriraj vs. State of M.P., Order dated 08.03.2017, Bench Indore), wherein the legal position has been considered in the light of various pronouncements of Hon'ble the apex Court; relevant paras whereof run as under:
09. 'Abetment to commit suicide' is an offence under Section 306 of IPC punishable with imprisonment for a term which may extend to 10 years and fine. Expression 'Abetment' has been defined in Section 107 of IPC which runs as under :-
"107. Abetment of a thing.-- A person abets 4 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) 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 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. In the State of Punjab Vs. Iqbal Singh, AIR 1991 SC 1532, the apex Court explaining the meaning and expanse of word 'abetment' as used in Section 107 of IPC, has held as under:
"Abetment" as defined by Section 107 of the IPC comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of that thing, and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word "instigate" in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. The dictionary meaning of the word "aid" is to give assistance, help etc. 5 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.)
11. In Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618, a three Judge Bench of the apex Court explaining the meaning and connotation of word "instigation" has held as under ( para. 20):
"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 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."
12. Taking note of the fact that each person's suicidability pattern is different from others and that each person has his own idea of self-esteem and self-respect, the apex Court in M. Mohan Vs. State, Represented by the Deputy Superintendent of Police, 2011 CRI.L.J. 1900 (S.C.), referring to its earlier decision in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), 2009 (16) SCC 605, held that to constitute abetment, there should be intention to provoke, incite or encourage the doing of an act by the accused.
13. Reference can also be made to the decision of the apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (Suppl.) Cr.L.R. (SC) 261, wherein the allegation was that the deceased was beaten 6 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) by the accused and was also subjected to harassment, due to which he committed suicide by consuming poisonous substance. The apex Court referring to its earlier decisions in Mahendra Singh & Anr. Vs. State of M.P., (1995) Supp. 3 SCC 731 and Ramesh Kumar Vs. State of Chhatisgarh, (2001) 9 SCC 618, holding that offence of abetment to commit suicide under Section 306 of IPC is not made out, observed 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".
14. In Deepak V. State of M.P., 1994 Cri. LJ 767 (M.P.), the deceased girl was threatened with defamation, if she refused to have sexual intercourse with two accused; within an hour she committed suicide leaving a suicidal note. Accepting the plea that the act of the accused might have been a reason for committing suicide but the same did not constitute abatement within the meaning of Section 306 read with Section 107 of the IPC, it was held that -
"neither there was any intention nor any positive act on the part of the accused to instigate her or aid her in committing suicide. The two accused persons, therefore, cannot be held guilty of the offence under Section 306 of the I.P.C. and their conviction on that count by the trial Court, is liable to be set aside."
15. In the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 S.C. 1998, the accused was charged under Section 306 of IPC for 7 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) abetting his brother-in-law to commit suicide; the accused allegedly said to him to 'go and die'; the deceased left behind a suicide note stating that accused is responsible for his death. It was held that words "go and die" do not constitute instigation for mens rea of offence under Section 307 of IPC.
16. In Mahendra Singh and Anr.
Vs. State of M.P., 1996 Cri.L.J. 894=1995 Supp (3) SCC 731, a case prior to the insertion of Section 113-A in the Evidence Act, the charge under Section 306 IPC proceeded on the basis of dying declaration of the deceased to the effect that -
"My mother-in-law and husband and sister- in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."
Considering legal sustainability of the same the apex Court held as under:
"Abetment has been defined in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased."
17. From the aforesaid pronouncements of the apex Court, it flows that to constitute 8 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) abetment to commit suicide, there must be material, prima-facie, indicating that accused with a positive act on his part instigated, incited, aided or provoked the person to commit suicide.
18. In Devendra and others vs. State of Uttar Pradesh and another, (2009) 7 SCC 495, it has been held as under:
"when the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."
07. The present case is required to be examined in the light of the aforesaid legal position. In the instant case, though there is allegation against the petitioners that they have slapped the deceased and further threatened him to be confined to jail and to be defamed in the locality, however, these allegations simplicitor cannot amount to abetment to commit suicide, within the meaning of Section 107 read with Section 306 of the IPC because no evidence is available on record to indicate that the petitioners at any point of time, have encouraged, instigated, provoked or goaded the deceased to commit suicide.
08. The learned Public Prosecutor has invited the attention of this Court to the disclosure statement said to have been made by Bhimsingh @ Bhimasingh to the effect that he asked the deceased to go and die, however, it is fairly conceded by the learned Public Prosecutor that as no fact, as such, has been discovered on the basis of the disclosure 9 THE HIGH COURT OF MADHYA PRADESH Cr.R. No.346/2017 (Bhimsingh & Ors. vs. The State of M.P.) statement, therefore the same does not amount to legally admissible evidence within the meaning of Section 27 of the Indian Evidence Act.
09. Considered in the light of the aforesaid, there is nothing on record to indicate that the deceased was provoked, encouraged, instigated, incited or goaded by the petitioners to commit suicide, therefore in the facts and circumstances of the case, even if all the allegations made against the petitioners are accepted at their face value, still the charge under Section 306 read with Section 107 of IPC for abetment to commit suicide is not made out, prima-facie against the petitioners. The learned trial Court, while framing charge has not adverted to aforesaid factual and legal aspects of the case and has mechanically framed charge against the petitioners. Therefore, the charge u/s. 306 read with Section 107 of the IPC against the petitioners cannot be sustained.
10. Accordingly, this petition deserves to be and is hereby allowed and the charge with regard to offence u/s. 306 read with Section 107 of the IPC against the petitioners is hereby quashed.
Certified copy as per rules.
(Ved Prakash Sharma) Judge sumathi