Allahabad High Court
Tarun vs State Of U.P. And Another on 6 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On: 03.01.2023 Delivered On: 06.02.2023 Court No. - 88 Case :- CRIMINAL REVISION No. - 3474 of 2022 Revisionist :- Tarun Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Vimlendu Tripathi,Satyanand Tripathi Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. The present criminal revision has been preferred against the order dated 18.07.2022, passed by the Court of Sessions Judge, Gautam Buddha Nagar in S.T. No. 504 of 2022 (State vs. Tarun), Case Crime No. 32 of 2022, under Section 306 IPC, P.S. Sector 49, District Gautam Buddh Nagar, whereby the application of applicant-accused for discharge has been rejected.
2. According to the prosecution version, revisionist is husband of deceased (Deepika) and their marriage has taken place in the year 2016. On 17.01.2022 deceased committed suicide and in this connection the father of deceased has lodged the first information report under Section 498A, 304B IPC and Section 3/4 of Dowry Prohibition Act against revisionist and his mother Meenu and sister Komal. During investigation, co-accused Meenu and Komal were exonerated and case was converted from Section 498A, 304B IPC and Section 3/4 of Dowry Prohibition Act to Section 306 IPC as it was found that deceased has committed suicide and later on charge-sheet was filed against revisionist only. The revisionist moved an application for discharge, which has been rejected by the Court below vide impugned order dated 18.07.2022.
3. Learned counsel for the revisionist argued that there are no such allegations that deceased was being harassed on account of dowry or otherwise. As per prosecution version, it has been found that during investigation that revisionist was admitted in Kailash Hospital, Noida on 21.10.2021 for laparoscopic Cholecystectomy surgery and he was discharged from said hospital on 22.10.2021 and he was advised for one month physical rest. In view of his medical condition, the revisionist was not in a position of cohabitation with his wife but later on in the ultrasound report of deceased, which was conducted on 16.12.2021, it was found that she was having pregnancy of seven weeks and one day. Referring to the period of surgery of revisionist and the period of his physical rest, it is submitted by the learned counsel that in view of these facts, as it was not possible that deceased may have got pregnancy due to cohabitation with revisionist thus, being husband, the revisionist has a valid ground to suspect the paternity of the fetus and in that connection he has enquired from the deceased but she did not give any satisfactory explanation and thus, the revisionist has asked for DNA test of her pregnancy. Learned counsel submitted that in view of these specific attending facts and circumstances of the case, mere raising suspicion about the pregnancy of deceased, it cannot be said that revisionist has abetted the deceased to commit suicide. Learned counsel has referred the provisions of Section 107 IPC and submitted that no case of abetment of suicide is made out against the revisionist. Learned court below did not consider the facts and position of law in correct perspective and committed error by rejecting the application of discharge filed by the revisionist.
4. In support of his contentions, learned counsel for the revisionist has placed reliance upon the following case laws:
(i) Krishna Lal Chawla and others vs. State of U.P. & Anr (2021)5 Supreme Court Cases 435;
(ii) Anand Singh and others vs. State of U.P. and Ors. (2021)3AIILJ 379/(2021) 0 Supreme(All) 1420;
(iii) Geo Varghese vs. The State of Rajasthan & Anr Criminal Appeal No. 1164 of 2021 arising out of S.L.P. (Crl.) 4512 of 2019;
(iv) Kanchan Sharma vs. State of Uttar Pradesh & Anr. Criminal Appeal No. 1022 of 2021 (Arising out of S.L.P. (Crl. No. 7554 of 2019);
(v) Sarvesh vs. State of U.P. (2018) (102) ACC 156.
5. Learned A.G.A. has opposed the revision and argued that there is evidence to show that revisionist used to suspect the character and chestity of deceased and he was even keeping surveillance on her mobile phone and that he has raised suspicion about her pregnancy by raising finger on her character and asked for DNA test. Learned A.G.A. further submitted that all these facts would amount abetment of suicide. It is further submitted that there is no illegality or perversity in the impugned order.
6. I have considered rival submissions and perused record.
7. It is well settled that at the stage of framing of charge or considering discharge application, the court is not to analyse reliability of the material on record. The evidentiary value and its credibility has to be considered at the stage of trial. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. At the stage of consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence.
8. In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39], considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
9. In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239], the Hon'ble Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.
10. In State of Maharashtra v. Priya Sharan Maharaj and Others [(1997) 4 SCC 393] it was held that at Sections 227 and 228 Cr.P.C. stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
11. It is apparent from the above discussed decisions of Hon'ble Apex Court that at the stage of charge there can only be limited evaluation of materials and documents on record. At the stage of charge or consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence.
12. At this stage it would be apt to discuss the necessary ingredients for applicability of section 306 IPC. In case of Geo Varghese (supra), referring to several other case laws, Hon'ble Apex Court held as under;
''''22. What is required to constitute an alleged abetment of suicide under Section 306 IPC is there must be an allegation of either direct or indirect act of incitement to the commission of offence of suicide and mere allegations of harassment of the deceased by another person would not be sufficient in itself, unless, there are allegations of such actions on the part of the accused which compelled the commission of suicide. Further, if the person committing suicide is hypersensitive and the allegations attributed to the accused is otherwise not ordinarily expected to induce a similarly situated person to take the extreme step of committing suicide, it would be unsafe to hold the accused guilty of abetment of suicide. Thus, what is required is an examination of every case on its own facts and circumstances and keeping in consideration the surrounding circumstances as well, which may have bearing on the alleged action of the accused and the psyche of the deceased.''
13. In case of Sarvesh V State (supra), the Court held as under:
"14. Abetment means some active suggestion or support to the commission of the offence. The word 'instigate' literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggest or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. It is also not necessary that the instigation should be only in words and may not be conduct. In the absence of any specific allegation that the accused did any of the acts for abetment, he cannot be convicted of the charge of abetment of suicide. It is to be made clear that a specific allegation must be made as to what particular act was done by the accused which may be interpreted as an act of abetment. To sustain conviction for abetment, it is not necessary that the act abetted must be committed rather abettor's guilt depends upon the nature of the act abetted (Jamuna Singh Vs. State of Bihar, AIR 1967 SC 553). In order to constitute abetment, the abettor must be shown "to have intentionally aided the commission of crime". Mere proof that the crime charged could not have been committed without his interposition is not enough. Presence of mens rea is a necessary concomitant for instigation. Direct evidence of any instigation or aid is not necessary. In Mahendra Singh Vs. State of MP, 1995 SCC (Crl) 1157, it was held that conviction for abetment merely on the allegations of harassment to the deceased is not punishable. For committing the offence under Section 306 IPC, there must be some intention and some positive act on the part of the accused to instigate the victim or to aid her in committing the suicide. The lady was harassed and ill-treated by her husband, who refused to accompany her to her parents' house for celebration of a festival. Therefore, she committed suicide by setting herself to fire. It was held that accused husband was not blamed anywhere at any stage, so it could not be said that he in any way had instigated her to commit suicide.
15. Where there is no evidence of any abetment and the evidence showed that the deceased used to pick-up quarrels for flimsy reasons and the wife who committed suicide was thoroughly dissatisfied because of economic disparity between the two families that of her husband and that of her parents, the charge of abetment to commit suicide must fail (Tapan Pal Vs. State of West Bengal 1992, Crl.L.J. 1017). In Thangappandian Vs. State, 1998, Crl.L.J. 993 (Mad), it was held that each and every misunderstanding of petty quarrel between husband and wife cannot be included within the term of cruelty. So where there was no evidence that willful conduct of accused husband was of such a nature as was likely to drive his wife to commit suicide. There was no other evidence of cruelty and harassment, it was held that accused was entitled to the acquittal of offence under Section 306, 498A IPC. Where the deceased was alleged to have committed suicide by hanging as she could not get a plot in her name even after paying money to the accused. It was held that mere non-fulfillment of promise about getting plot allotted in her name would not be sufficient for fulfilling ingredients of Section 306 IPC. In Sanju @ Sanjay Singh VS. State of MP (2002) Crl.L.J. 2796 (SC), it was held that accused was in the habit of drinking and out of frustration one day asked the deceased to go and die. It was held that this much was not sufficient to constitute the offence of instigation as there was absence of mens rea. Charge framed under Section 306 IPC against the accused was, therefore, quashed.
16. The word "instigate" denotes incitement or urging to do some in drastic or inadvisable action or to stimulate or incite. The vague allegation like inciting the husband by the in-laws for contracting second marriage would not be enough in constituting the offence of abetment. Instigation in the contest of conduct of a husband towards wife means creating a situation by conduct whereby the wife who is in complete dependence and at the mercy of the husband, sees no other way, except to end her life ( Ram Kumar Vs. State, 1998, Crl.J 952 (M.P.).
17. In State Vs. Sunil Kumar, 1997 Crl.L.J. (2014) Gujarat, it was held that mere quarreling with the wife would not amount to abetment. In the same way mere misbehavior on the part of the accused cannot be equated with abetment.''
14. In case of Anand Singh (supra), the court has referred several case laws of Apex Court and observed that from the law, as laid down and discussed elaborately by the Supreme Court in the case of Arnab Manoranjan Goswami (supra), what is culled out is that for driving home the charge under Section 306 IPC, it is essential that there should exist specific material/assertion so as to demonstrate that the abettor/accused had done any act positive so as to goad, urge forward, incite or encourage to do the act of suicide. However, the factual position of that was quite different from the case in hand.
15. In the instant matter, perusal of record shows that the opposite party No.2 has lodged first information report of this case against the revisionist and co-accused persons, alleging that his daughter Deepika was married with revisionist in the year 2016. On 17.01.2022 at 10:00 AM he received a telephonic call that his daughter is lying unconscious and she is admitted in Kailash Hospital. The informant/opposite party No.2 reached there and found that his daughter has already died. The informant further alleged that as his daughter was being harassed by the accused persons, thus, he suspects that she has been murdered by the accused persons. The police conducted investigation and found that deceased has committed suicide and case was converted from Section 304-B/498A IPC to Section 306 IPC and charge-sheet was submitted against revisionist accused Tarun, whereas the involvement of co-accused Madhu @ Meenu and Komal was found false and thus, they were exonerated. Perusal of record shows that during investigation it was found that the deceased was having an affair with one Pankaj and due to this reason revisionist used to suspect the character of his wife(deceased). As per version of revisionist/accused, he was admitted in Kailash Hospital for operation in gallbladder and he was discharged on 22.10.2021 and advised for one month physical rest and during that period he did not establish physical relation with his wife but as per ultrasound report, deceased has got pregnancy during that period and that revisionist accused has asked her for DNA test of fetus and due to these reasons the deceased committed suicide. It was found that revisionist/accused used to suspect the character of his wife(deceased) and he was pressurizing her for ultrasound of the child in womb and she committed suicide due to that reason. Here it may be observed that if revisionist/accused was having any suspicion about the character of deceased or about paternity of child in her womb, he may have other legal remedies but instead of resorting to the legal remedies, he was pressurizing the deceased for DNA test. Here it would be apt to make a reference to the provisions of section 113-A of Evidence Act. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. A bare reading of Section 113A of Evidence Act shows that necessary conditions to invoke this presumption are (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. No doubt the presumption is not mandatory, it is only permissive as the use of expression 'may presume' suggests. Before invoking the presumption the Court shall have to regard to 'all the other circumstances of the case. In the instant case it has to be kept in mind that the case in question is at the stage of charge. It is not in dispute that the deceased committed suicide within 7 years of her marriage with the revisionist/ accused. At the time of incident she was having pregnancy. During investigation it has been found that the revisionist / husband of deceased used to raise finger at the character of deceased and he has gone to the extent of doubting the paternity of the child in womb of deceased and he used to pressurize the deceased for DNA test to determine the paternity of the child in womb. Thus, the deceased was being subjected to cruelty on that account. In view of these facts and circumstances and also considering the statement of informant and his family members, it cannot be said that no prima facie case under Section 306 IPC for charge is made out. The facts and circumstances of the case of Kanchan Sharma vs. State of Uttar Pradesh (supra) were quite different from the instant matter and thus, the said case is of no help to the revisionist. The case of Krishna Lal Chawla (supra), relied by the learned counsel for the revisionist, relate to the issue of summoning. The issue of charge or discharge was not in consideration in those case cases, hence these case laws provide no help to the revisionist..
16. The Court below has considered all relevant facts and circumstances of the case, as well as the position of law, and found that a case under Section 306 IPC is made out. As observed earlier, even strong suspicion is sufficient to frame the charges. In the instant matter, considering all relevant facts and material on record and also considering position of law, it cannot be said that impugned order is suffering from any such material illegality or perversity or error of jurisdiction so as to require any interference by this Court in revision. The revision lacks merits and thus, liable to be dismissed.
17. The criminal revision is dismissed.
Order Date :- 06.02.2023 A. Tripathi