Madhya Pradesh High Court
Harishankar vs The State Of Madhya Pradesh on 27 February, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-18761-2016
(HARISHANKAR Vs THE STATE OF MADHYA PRADESH)
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Jabalpur, Dated : 27-02-2018
Mr.Sankalp Kochar, learned counsel for the petitioner.
Mr.Pradeep Gupta, learned Panel Lawyer for the
respondent/State.
Respondent No.2 remained absent, despite service of notice.
sh The petitioner has preferred this petition under section 482 of e the Code of Criminal Procedure to invoke the extraordinary ad jurisdiction of this Court and to quash the FIR dated 07.8.2016 at Pr Crime No.291/2016 registered at Police Station, Silwani, District Raisen for an offence under section 306 of the Indian Penal Code (for a hy short "IPC").
2. The factual matrix of the prosecution story, in brief, is ad that Smt.Seema Vishwakarma wife of Kamlesh Vishwakarma, aged M about 29 years, died due to burn injuries. Her postmortem report reveals that she died as a result of cardiac respiratory failure and as a of result of burn and its complications. Accordingly, crime was rt registered. During investigation, it has been found that the deceased ou was married to Kamlesh Vishwakarma 8 years ago. Kamlesh Vishwakarma was working at a private school. Due to their wedlock, a C son and a daughter were born.
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3. Six months earlier to the incident, cell phone of the ig deceased was in the hands of Kamlesh Vishwakarma. A call from H "SK" was received. When the respondent No.2-Kamlesh dialled the same number through his own cell phone, the person replied was Hari Shanker Sen (petitioner). Later, when Kamlesh asked his wife as to who is Hari Shanker Sen and what relation she has with him, she did not reply. But, when she was given the oath of his children, she narrated to Kamesh Vishwakarma that, for last 8 months she is in relation with Hari Shanker Sen (petitioner). The husband told her that, if it is so, she may live with Hari Shanker Sen.
4. She left the house without informing anyone and tried to jump into 'Naramada' river to commit suicide. Somehow the persons present there saved her and dialled "100" number and her husband was called and she was brought to home alongwith other relatives. After living at Sagar for about 8-10 days, they returned to their home at Silwani. On 27.6.2016 when Kamlesh went to the colony for a stroll after having his dinner at about 10 p.m., the deceased-Smt.Seema Vishwakarma poured kerosene oil and set herself ablaze. Again "108" number was dialled and she was taken to Silwani Hospital and from there to Bhopal for treatment. During treatment, she died on 30.6.2016.
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5. On 27.6.2016 the Naib Tahsildar recorded the "dying e declaration" of Seema Vishwakarma in presence of Dr.R.S.Patel at ad 11.30 p.m. at Silwani. The "dying declaration" show that she burnt Pr herself as she was not in a position to leave the house. Nor she can go to the maternal house, nor she can live with the (petitioner) Hari a Shanker, the neighbour who has refused to keep her. The petitioner-
hy Hari Shanker kept the extra-marital relations with her for last 8 ad months. He wanted to sell her and cheated her. She poured kerosene M oil and set herself ablaze. At that time, her husband was not present at the home.
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6. After due investigation, Police Silwani has filed this challan against the petitioner for the offence under section 306 of the rt Indian Penal Code.
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7. On behalf of the petitioner, this petition has been filed for C quashing of the FIR and the consequent charge-sheet on the ground h that petitioner is innocent. There was no abetment by the petitioner. ig The petitioner has not done any overt or covert act. No ingredient of H section 107 of the Indian Penal Code is fulfilled. Therefore, the offence under section 306 of I.P.C. is not prima faice made out, even if the prosecution case is accepted in its entirety. No actus rea and mens rea has been established by the prosecution. In the absence of the same, the petitioner is entitled for quashing of the proceeding.
8. Pet contra, learned counsel for the respondent/State vehemently opposed the contentions and submitted that the petitioner has pushed the deceased to such an extent that she was not left with any other alternative except to commit suicide. In the dying declaration it has been made very clear that Seema Vishwakarma was cheated and was being sold by the petitioner. Therefore, she was left with no other option, except to commit suicide.
9. On behalf of the petitioner reliance has been placed on the decision in the case of Ananda Bapu PUnde alias Koli vs. Balasaheb Anna Koli and others, (2017) 4 SCC 642, which is related to the offence under sections 304-B of the Indian Penal Code and is not attracted in the present case.
10. The petitioner has also placed reliance on the decision in the case of Bhurey Khan vs. Yaseen Khan, 1995 Supp. (3) SCC 331 sh which is related to civil case of abatement of appeal and, therefore, the e same is not attracted in the present case.
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11. The petitioner has also placed reliance on the decision in Pr the case of Sanju alias Sanjay Singh Sengar vs. State of M.P., (2002) 5 SCC 371, in which, the Apex Court has held that suicide was not a proximate to the quarrel, though the deceased was named in the hy suicide note. Therefore, the suicide was not the direct result of the ad quarrel. Hence, offence under section 107 of I.P.C. was not complete M and, therefore, presence of mens rea was not found.
12. Learned for the petitioner further placed reliance on the of case of Jagannath Choudhary and others Versus Ramayan Singh and another, (2002) 5 SCC 659 wherein the Apex Court held that the rt interference by the High Court with the judgment and order called for ou only in exceptional cases of gross miscarriage of justice. Therefore, C directing the trial Court to write fresh judgment by giving proper h judicial mind to the evidence on record is a significant departure from ig the normal form of court order and was not justified.This citation is H also not applicable in the present case.
13. The petitioner has also placed reliance on the decision in the case of Netai Dutta vs. State of West Bengal, (2005) 2 SCC 659 where an employee of the transferred but not joined and after remaining absent for 2 long years submitted resignation. There was no allegation in the suicide note except referring the name of the appellant. Hence, was found fit for exercising the provisions of section 482 of the Code of Criminal Procedure to quash the criminal proceeding. The facts of the present case are completely different and, therefore, the same is not applicable in the present case.
14. The petitioner also placed reliance on the decision in the case of State of Punjab Vs. Kamaljit Kaur @ Bholi and another, 2008 SCC Online P&H 331, in which, it has been held that harassment and mental disturbance do not constitute offence of abetment and hence, no prima facie case was found. In this case Kamaljit Kaur was held to be a woman of bad character and writing this note the petitioner committed suicide. It was not found fit for consider the same as abetment. In the present case the circumstances are different.
15. The petitioner has also placed reliance on the case of sh Amalendu Pal alias Jhantu vs. State of West Bengal, (2010) 1 SCC e 707, in which, suicide was committed due to alleged cruelty and ad harassment meted out to the victim. Therefore, there was not active Pr role on the part of the accused in abetment by direct or indirect act of instigation. It was a case under section 498-A and 306 of I.P.C. and, a therefore, the circumstances are different and hence, are not hy applicable.
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16. The petitioner has also relied on the decision in the case M of Ramdas Ajinath Bhandwalkar vs. State of Maharashtra, 2012 SCC Online Bom.321 wherein the Bombay High Court has held that of that as no suicide note was available, the daughter committed suicide was not clear. Therefore, her parents were held not liable, for there rt was no abetment committed by them. This case is also of no avail to ou the petitioner.
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17. Learned counsel for the petitioner has also placed h reliance on the decision in the case of Supchand s/o Nathuji Lonare ig vs. State of Maharashtra, 1994 SCC Online Bom.593 wherein the H Bombay High Court has discussed the issue regarding conviction of the appellant for offence under section 306 of the I.P.C. for mental harassment and physical cruelty to the wife by beating her severely many a time. She filed a petition for judicial separation. Therefore, unhappiness of marital life might have led the wife to commit suicide. Accordingly, the husband was acquitted.
18. The petitioner further relied on the decision in Gurucharan Singh vs. State of Punjab, (2017) 1 SCC 433, in which, the Apex Court has analyzed the abetment to commit suicide and held that to constitute abetment, intention and involvement of accused to aid or instigate commission of suicide is imperative. Any severance or absence of any of these constituents would militate against said indictment. In this case, the husband-J was missing for his failure to repay the bank loan as a result of loss suffered by him in the business, therefore, wife and two daughters committed suicide.
19. In the present case, circumstances are totally different and, therefore, both the above cases cannot be applied in the present case.
20. In the present case, if the evidence available on record is sh analyzed, it clearly indicates that the deceased-Seema Vishwkarma e died due to burning and in her dying declaration she has stated that the ad petitioner had illegal and illicit relations with her for last 8 months, Pr which her husband came to know it. Thereafter, the petitioner refused to keep her. She cannot go to her mother's place nor she can leave the a house of her husband alone. The petitioner allegedly tried to sell her to hy someone by cheating her. This prompted her to commit suicide, for ad she had no other go. The contents of the suicide note make out offence M against the petitioner. The present one is a case where the accused/petitioner by his acts and omission or by continuing course of of conduct created such circumstances that the deceased was left with no other option except to commit suicide, in which, the case of instigation rt might have been inferred.
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21. In the circumstances, this Court is not inclined to C exercise the powers under section 482 of the Code of Criminal h Procedure to quash the criminal proceeding lodged against the ig petitioner. Therefore, the petition is dismissed. H (SUSHIL KUMAR PALO) JUDGE Digitally signed by RAJESH T MAMTANI Date: 2018.03.08 03:27:51 -08'00' RM