Madhya Pradesh High Court
Shubha Shrivastava vs The State Of Madhya Pradesh on 26 May, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 CRR No. 732 of 2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Criminal Revision No. 732 OF 2016
Shubha Shrivastava & Anr.
-Vs-
State of M.P.
__________________________________________________
Shri V.K. Saxena, Senior Advocate with Shri P.S.
Bhadoria, Counsel for the applicants.
Shri Prakhar Dhengula, Panel Lawyer for the
respondent/State.
__________________________________________________
ORDER
(26/05/2017) This Criminal Revision has been filed against the order dated 18-7-2016 passed by 11th A.S.J., Gwalior in Sessions Trial No. 202/2016 by which the charge under Section 306 or in the alternative 306/34 of I.P.C. has been framed against the applicants.
2. The necessary facts for the disposal of the present criminal revision in short are that on 17 th April 2016, the deceased Ms. Savita Rane, checked in Room No. 109 of Hotel Ambience, Gwalior. On 18th April 2016, a phone call of a lady namely Riya was received at the reception of the hotel from her mobile no. 9769048568 and an information was given that although bell is ringing but Ms. Savita Rane is not picking up the phone, therefore, Ms. Madhu, Hotel Receptionist, Bell boy Arjun and Supervisor Pankaj checked the room but inspite of several knocks, Ms. Savita Rane did not respond. Ultimately, 2 CRR No. 732 of 2016 the room was opened with the help of master key and it was found that Ms. Savita Rane had committed suicide by hanging. Room was locked once again and information was given to the police.
3. After receipt of the information, the police went on the spot and on search one suicide note, one letter written in Marathi language, one carbon copy of the letter bearing the acknowledgment of receipt of Police Station Murar etc. were found. The dead body was sent for postmortem. During merg enquiry, the police recorded the statements of some of the witnesses and thereafter registered the F.I.R. against the applicants for offence punishable under Section 306,34 of I.P.C.
4. The Police after completing the investigation, filed the charge sheet against the applicants for the above mentioned charges.
5. The Trial Court by order dated 18-7-2016 framed charge under Section 306 or in the alternative 306,34 of I.P.C. against the applicants.
6. Challenging the correctness and propriety of the order dated 18-7-2016, it is submitted by the Counsel for the applicants that there is no ocular evidence against the applicants from which an inference may be drawn that the applicants might have instigated/abetted the deceased to commit suicide. It is further submitted that even if the suicide note or the letter which was found in the room of the deceased is considered, then no inference can be drawn that the applicants might have abetted the deceased to commit suicide.
7. Per contra, it is submitted by the Counsel for the State that it is clear from the letter as well as the suicide note of the deceased that the applicants were leading a homosexual life and they had also involved the deceased. The deceased had shifted from Mumbai to Gwalior and was residing with the 3 CRR No. 732 of 2016 applicant no.1 in her room. Due to the unnatural lifestyle of the applicants and as the deceased too was involved in such unnatural lifestyle, therefore, her family life had ruined and she wanted to come out of this unnatural style of life but the applicants were not permitting her to leave their company, therefore, the deceased was being compelled to live the unnatural lifestyle. Even one day prior to the date of incident, the matter had travelled upto the police station but as the matter was compromised therefore, the applicants and the deceased came back. On the next day, i.e., the deceased left the house for going to Mumbai but as the applicants had created such a situation before the deceased, where she was left with no other option but to put an end to her life, therefore, instead of boarding the train, She checked in Hotel Ambience and ultimately on the next day i.e., 18 th April, 2016, her dead body was found hanging. Thus, it is submitted that the applicants by compelling the deceased to lead an unnatural lifestyle and the deceased was trying hard to come out of the said unnatural style of living and as the applicants were not allowing her to leave their company, therefore, the applicants created such a situation before the deceased, where She was left with no other option but to put an end to her life.
8. Heard the learned Counsel for the parties.
9. Before adverting to the facts of the case, it would be apposite to consider the scope of power under Section 227 and 228 of the Criminal Procedure Code.
10. Section 227 of Cr.P.C. reads as under :-
227. Discharge.-- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record 4 CRR No. 732 of 2016 his reasons for so doing.
Section 228 of Cr.P.C. reads as under :
228. Framing of charge.-- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
The use of words "not sufficient ground for proceeding against the accused" in Section 227 of Cr.P.C. are the most important words which the legislature has used, meaning thereby, that though not meticulously, but the Trial Court must consider the allegations made against the applicant and if comes to a conclusion that there is no sufficient ground for proceeding against the accused, then it shall discharge the accused. The Trial Court cannot be treated as a mouthpiece of prosecution or should not act merely as post office. The Court must apply its judicial mind to the facts of the case, and only 5 CRR No. 732 of 2016 thereafter if comes to a conclusion that prima facie there is strong suspicion against the accused, then must frame charges against him. The possibility of conviction cannot be a ground to frame charge. Whether the trial would result in conviction or not cannot be criteria for framing charge or for discharging an accused. A strong suspicion is sufficient to frame charge. The nature of the evidence and the documents collected during the investigation and produced before the Court, should be considered to come to a conclusion that whether the material available on the record against the accused creates a suspicious circumstance against the accused so as to frame charge against him or not ?
The Supreme Court in the case of P. Vijayan Vs. State of Kerala and another reported in (2010) 2 SCC 398 has held as under :
10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the 6 CRR No. 732 of 2016 case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.
11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances The Supreme Court in the case of State of Bihar Vs. Ramesh Singh reported in (1977) 4 SCC 39 has held as under :
4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228.
Reading the two provisions together in juxtaposition, as they have got to be, it 7 CRR No. 732 of 2016 would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial 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. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. 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 against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to 8 CRR No. 732 of 2016 indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.
The Supreme Court in the case of Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya reported in 91990) 4 SCC 76 has held as under :
6. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution.
The Supreme Court in the case of L. Krishna Reddy Vs. State reported in (2014) 14 SCC 401 has held as under :
9 CRR No. 732 of 201611. The court is neither a substitute nor an adjunct of the prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in perspective lest, on the basis of flippant or vague or vindictive accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured.
11. We shall now consider the evidence which has been collected by the prosecution against the applicants.
12. The Investigating agency has recorded the statements of Pradeep Saxena, Arjun Balmik, Smt. Madhu Bhadoriya, Pankaj Rajput, Abhishek Moge, Aditya Sinde, Sunil Singh Kushwaha, Hina Sikarwar, Smt. Usha Sikarwar, Man Mohan Shrivastava, Sukhpal Singh Tomar, Lokendra Kushwah, Radheshyam Sharma, Brijesh Sharma, Smt. Guddi Pathak, Gopi Madan, Anita Wadhwani, Dilip Goyal, Smt. Jaya Ramesh, Sunil Chopda, Hem Kumar Kashyap, Anil Kumar Shrivastava, Pradeep Shrivastava.
13. Pradeep Saxena, Arjun Balmik, Pankaj Rajput and Smt. Madhu Bhadouriya are the employees of Hotel Ambience.
They have stated that they received a telephonic call of one Riya, resident of Mumbai, that Smt. Savita Rane is not picking up her phone, therefore they checked the room and ultimately found that the deceased Smt. Savita Rane had committed suicide by hanging herself.
14. Abhishekh Moge, Heena Sikarwar, Smt. Usha Sikarwar, have stated that on 16-4-2016 i.e., one day prior to the date of incident, the applicant no.1 informed on mobile that Smt. Savita Rane has tried to commit suicide, therefore, they should immediately come. These witnesses went to the house 10 CRR No. 732 of 2016 of applicant no.1 where they met with Smt. Savita Rane and enquired about the cause for making attempt to commit suicide but she did not disclose the same. Thereafter they went to police station Murar along with the uncle of applicant no.1, two more persons, Smt. Savita Rane and others where a compromise was arrived at between Smt. Savita Rane and uncle of applicant no.1, thereafter every one went home. Smt. Savita Rane requested Abhishekh Moge to get a ticket for Mumbai, therefore, Abhishekh Moge got reservation done through internet. On 17-4-2016, Abhishekh Moge went to Railway Station to leave Smt. Savita Rane and talked to her on mobile, then She informed that she is on the way but thereafter She did not come to Station and subsequently, her mobile was also switched off. On 18-4-2016, Abhishekh Moge got an information that Smt. Savita has committed suicide. These witnesses have also stated that they have no idea as to why Smt. Savita Rane committed suicide.
15. Aditya Shinde, Sunil Singh Kushwaha, Sukhpal Singh Tomar, Lokendra Kushwaha, Gopi Madan, Anita Wadhwani, Dilip Goyal, Smt. Jaya Ramesh, have stated that they are working in Gwalior Glory where Smt. Savita was already working. On 18-4-2016 they came to know that Smt. Savita has committed suicide. Nobody from her house came to receive her dead body and the funeral was done by the Marathi Society. They have further stated that Smt. Savita had never informed them about any difficulty.
16. Man Mohan Shrivastava is the uncle of applicant no.1 and is the uncle-in-law of the applicant no.2. This witness has stated that total 10 persons are there in his family and all of them reside in a same house. On the second floor, his niece Sudha along with her two daughters Pragya and Somya, applicant no.1 and the deceased Smt. Savita were residing whose room was separate. On first floor, the elder brother of 11 CRR No. 732 of 2016 this witness namely K.N. Shrivastava aged about 78 years, his wife aged about 76 years, his son Arun Shrivastava, his wife Seema Shrivastava, the applicant no. 2, their son Ansh aged about 17 years and this witness are residing. Savita used to talk to some body and used to get upset after having telephonic conversation. Savita had started interfering in the family affairs and it was objected by the family members. Smt. Savita was asked to vacate the room and She had told that She would vacate the same by 15th of May. On 16-4- 2017, Smt. Savita tried to commit suicide. She was taken to Police Station Murar where She had given in writing that in case any thing happens to her than this family would not be responsible and vice versa. This witness came back after leaving Smt. Savita in the Police Station Murar. On 18-4- 2016, this witness came to know from the T.V. News about the fact that Smt. Savita has committed suicide. He also rejected the allegations made against the applicants.
17. Radheshyam Sharma, Brijesh Sharma, Smt. Guddi Pathak are the neighbour of the applicants. They have stated that on 16-4-2016, they went to the house of the applicants where they found that Smt. Savita was having a knife in her hand and was saying that She wants to commit suicide and want to implicate the applicants. Police was called and She was taken to the police station. On 18-4-2016, they came to know that Smt. Savita has committed suicide in Hotel Ambience. They have further stated that they had never heard of any dispute between Smt. Savita and the applicants.
18. Sunil Chopda, has stated that applicant no.2 is his sister- in-law and he was told that Smt. Savita had tried to commit suicide and was taken to police station where compromise had taken place. He also stated that thereafter he came to know that Smt. Savita has committed suicide.
19. Hem Kumar Kashyap stated that Smt. Savita was 12 CRR No. 732 of 2016 residing in the room of the applicant no.1, however, he had not gone to the house of the applicants for the last near about 5 years. He came to know about the suicide of Smt. Savita on 19-4-2016 from the news papers.
20. Anil Kumar Shrivastava, Pramod Shrivastava have stated that on 15-4-2016 they had gone to the house of applicants to attend the Ramayana and the entire function was over peacefully and on 19-4-2016, they came to know that Smt. Savita has committed suicide.
21. Thus, it is clear that the only ocular evidence available on record is that Smt. Savita Rane was living in the house of the applicants as a paying guest and one witness has stated that the applicant no.1 and Smt. Savita Rane were sharing one room. Further on 16-4-2016, Smt. Savita Rane had tried to commit suicide and information was immediately given to the police and Smt. Savita was taken to Police Station Murar, where the matter was compromised. Further even after the death of the deceased Savita Rane, nobody from her house from Mumbai came to Gwalior to receive her dead body and the funeral was also performed by the members of the Marathi Society at Gwalior. Thus, from the statements of the witnesses, nothing can be inferred that the applicants might have instigated the deceased to commit suicide.
22. Now, the only evidence which remains for consideration is the suicide note as well as the letter which was written by the deceased.
23. The suicide note which was seized from the place of incident reads as under :
^^vkt Hkh eSa lfork jk.ks vkRegR;k dj jgh gwaA dy 'kqHkk JhokLro tks vkbZ-Vh-,e- ;wfuoflZVh esa ,p-vkj- vflLVsaV eSustj dh iksLV esa dke dj jgh gS vkSj mldh HkkHkh lhek JhokLro tks ;wfuolZy Ldwy pykrh gSA muds ?kj iqfyl x;h Fkh ijarq uk mudks esjh fpVBh fn[kk;h uk gh muls fdlh ls iwNrkN fdA eSa vdsyh gwa blfy, ehfM;k ls enn ekaxh Fkh ijarq ehfM;k us flQZ vkt ds isij esa U;wt Nki 13 CRR No. 732 of 2016 nhA eq>s U;k; pkfg;s bu nks leySafxd vkSjrksa dks ltk feyuh pkfg;s rkfd fdlh vksj dh ftanxh cjckn uk gksA buds ?kj ds yksx lkjk ekeyk iSls nsds nck nsrs gSaA gky gh esa 6 ekpZ 2016 dks lhek JhokLro dks eqjSuk iqfyl idM+ ys x;h Fkh ifjokj Msvjh ds vQjkrQjh ds ekeys esa ijarq ,d jkr j[k dj nwljs fnu mldks fdlh Hkh dk;Zokgh ls NksM+k x;kA d`i;k eq>s bUlkQ fnyk nhft,A 'kqHkk JhokLro lfork jk.ks 9165324041 17-04-2016 ;g fpV~Bh esjs ?kjokyksa dks Hkst fn gSA vkSj esjs Qksu esa QksVks Hkh gSA^^
24. The letter written by the deceased Savita Rane reads as under :
^^ nwljk i= ejkBh dk fgUnh vuqokn dSls dgwa vkSj dSls fy[kwa ;s le> ugha vk jgk eSaus vki yksxksa dks cgqr nq%[k fn;s gS vkSj lc ls tknk nq%[k eSaus esjs iq= o ifr egs'k dks fn;s gSaA vkSj vki yksx ftl ckjs esa Hkh fopkj dj jgs gSa vki lc viuh txg ij fcYdqy lgh gSa vc vki yksxksa dh ,slh n'kk ns[k dj eSa fdlh dks Hkh nq% [k ugha nwaxh eSa ;s nqfu;k NksM+ dj tk jgh gwa ;s esjk [kqn dk fy[kk gqvk i= gS esjk vki yksxksa ls dksbZ eu eqVko ugha gS tc Hkh vki dks esjs ejus ds ckn ;s i= feys rks ml ij XkkSj djuk eq>s ,slh dksbZ nq%[k ugha gS ysfdu eSa ;gka is vdsysiu ls cksj gks pqdh gwa blfy, eSaus fu.kZ; fy;k gS vius ?kj ifjokj vius vkneh dk esjh ftUnxh esa cgqr egRo gS ;s eq>s vc le> vk;k ysfdu vc cgqr nsj gks pqdh gS vc dksbZ dqN ugha dj ldrk D;ksafd dksbZ eq>s j[kuk ugha pkgrk dkj.k eSaus viuh ,d xyr fu.kZ; ls lHkh njokts cUn djok fn;s ftlds dkj.k txr esa vfHkeU;w dh rjg gks pqdh gwaA ftl rjg mlds ikl ejus ds flok; dksbZ pkjk ugha Fkk ysfdu eSa viuh ftUnxh cjckn djus -------------------------------------Qkalh yxk jgh gwa ftlus eq>s nq%[k fn;k gS mls de ls de 10 lky dh tsy gksuh pkfg;s vkSj HkkHkh dks Hkh rc tkds esjh vkRek dks 'kkfUr feysxh nwljksa dh ftUnxh cjckn djus okys vkSj esjk thou gjke djus okys nksuksa dks 10 lky ds fy, tsy esa lM++k;k tk; ysfdu tsy esa nksuksa dks ,d lkFk ugha j[ks D;ksafd ogka ij Hkh ;s nksuksa viuh izse dgkuh 'kq: dj nsaxhA blfy, bu nksuksa dks vyx&vyx tsy esa j[kk tk; ftl dkj.k mUgsa ;s vglkl gksuk pkfg;s fd fdlh dk glrk [ksyrk gqvk ?kj rksM+us dk D;k ifj.kke gksrk gS eSaus tSls rSls vius ftUnxh ds vkB ls nl lky jks /kks ds fnu fudky fn;s bl dks Hkh tsy esa lM+k;k tk; ;s esjh [kqn dh bPNk gS esjh dksbZ Hkh oLrq m/kj jg x;h gksxh tks mUgksaus lgtk lgth dj ds vki dks nh gksxh ysfdu vki yksx ;s esjs diM+s pIiy vkSj lksuk uxnh vxj vki dks fn;k rks vki yksx t:j j[k ysuk D;ksa fd esjh dksbZ Hkh 14 CRR No. 732 of 2016 ;kn m/kj j[kuk ugha pkgrh ,slk eq>s yxrk gS esjs ,++- Vh-,e- dk fiu uEcj eSa OgkWVl ,i ij Hkstwaxh D;ksafd vxj eSa irs ds cjkcj ,-Vh-,e- dkMZ Hkstwaxh rks oks fjgLdh jgsxkA esjh ih-,Q- ds QkeZ ij mn; dks uksfeuh cuk;k gSAmls ;s iSls t:j feysa vkSj esjh rjQ ls esjs cPps ds fy, ;'kw]lk{kh]izfr]euq]xtxh]glZ ds fy;s bLrseky fd;k tk; blh izdkj dh lsfoax esjh vkbZ-lh-vkbZ-lh-vkbZ- o ,l- ch-vkbZ- cSad esa Hkh gS tks esjs cPpksa ds fy, bLrseky dh tk; ftUnxh Hkj rks eSa mUgsa dqN ns ugha ik;h ysfdu esjs ejus ds ckn esjh tek iwath muds mi;ksx esa vk;sxh rks eq>s cgqr [kq'kh gksxh eSa vHk; vkSj egs'k dh xqukgxkj gwa oks yksx eq>s ekQ dj nsa vkSj vHk; ds fy, ,d gh ckr cksyuk pkgrh gwa fd rsjh eka cqjh vkSjr ugha gSAmlds le; [kjkc py jgs Fks ftl dkj.k mlds gkFkksa ls ,slk iki gqvk vxj rq>s 'kd gS rks esjk frjLdkj er djuk eSa rq>ls cgqr I;kj djrh gwa esjs tkus ds ckn eq>s lqgkfxu egs'k dh iRuh le> dj ;s lkspuk fd eSa lgh ejh gwa vkSj esjk vafre laLdkj mldh iRuh le> ds gh djuk vxj egs'k dks vius eu ls ;s lc ilUn ugha gS rks jgus nsuk ,d ckj fQj eSa lc ls ekQh ekaxrh gwa vki yksx eq>s ekQ dj nksA lHkh lq[kh jgks d`i;k djds ,d nwljs dks --------------------dh dher dks le>ksa lc yksx izse n;k vkSj vkjke ls jgks D;ksafd vdsykiu fdruk Hk;adj gksrk gS ;g vuqHko eq>s gS vkSj esjh tSlh ftUnxh fdlh dh u gks blfy, ;s cksyrh gwa fd lc izse ls ,d lkFk jgsaA vki yksxksa dh xqugxkj lfork mQZ fpaxh bu nksuksa dks ltk nsus ds fy, ,d ikWbUV Hkh gS 1997&98 ds chp ;s tcyiqj x;s Fks rc lqHkk dh ,Q-vkbZ- vkj- Hkh Fkh ml Vkbe ij lqHkk JhokLro vkSj lhek JhokLro bUgsa ltk gksuh gh pkfg;s uke&vfouk'k Hksylsokys eksckbZy u0 8461947258^^
25. From the suicide note, the deceased Savita Rane had leveled an allegation that the applicants are homosexual and they must be punished so that the life of anybody else may not be spoiled. On 6 March 2016 also, the Morena police had taken away Smt. Seema Shrivastava but thereafter She was allowed to go. Thus, from the plain reading of this suicide note, it appears that the deceased had leveled an allegation that the applicants are homosexual and they should be punished so that the life of anybody else is not spoiled. The Counsel for the State submitted that the meaning of this letter is that the applicants had involved the deceased in the 15 CRR No. 732 of 2016 unnatural style of living and the deceased was fed up with the said life style and therefore, She committed suicide. This submission made by the Counsel for the State cannot be accepted as in absence of any specific and clear allegation, nothing can be inferred that the deceased was also being compelled by the applicants to live the unnatural life style. Similarly, if the letter written by the deceased is considered then it would be clear that She was very upset because She had spoiled her married life and She had also tendered apology to her husband and child. She had also written that now she has understood the meaning of family life and She is all alone. Because of a single wrong decision, every one has closed the doors of their house and nobody wants to keep her, therefore, She has no other option to put an end to her life. She further stated that the persons who have spoiled her life should not be spared and they should be kept behind the bars for atleast 10 years. In jail also, both the ladies should be kept separately otherwise, there also they would get involved in their love story. They should also be made to realize that they should not have spoiled the happy married life of somebody. Somehow, She has spent 8-10 years therefore, these two ladies should also be kept in jail for 8-10 years. Thereafter She has written about the property/money which she will be leaving. She again tendered apology to her husband and child. In the remaining letter, there is nothing against the applicants. The letter was completed and was signed. However, it appears that thereafter again a note was written by the deceased that there is one more reason for punishing the applicants. In the year 1997-1998, they had gone to Jabalpur and there was a F.I.R. against Shubha and therefore, on that basis also, the applicants should be punished.
26. Thus, in nutshell it is clear from the suicide note as well 16 CRR No. 732 of 2016 as the letter written by the deceased that she had some grudge or grievances against the applicants, however, nothing could be gathered from the suicide note or the letter about the said grudge or the grievances. There is no allegation that the deceased was compelled to live an unnatural style of living. The allegations are that the applicants are homosexual but it cannot be inferred that the deceased too was also compelled to live the same lifestyle. Undisputedly, the applicants are closely related to each other and are residing in the same house along with other family members. Therefore, the close association of the applicants is not unnatural.
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.
27. "Abetment" is defined under Section 107 of IPC 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.
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 17 CRR No. 732 of 2016 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.
28. The Supreme Court in the case of S.S. Chheena Vs. Vijay Kumar Mahajan reported in (2010) 12 SCC 190 has held as under:-
25. 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 and the ratio of the cases decided by this Court 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 that act must have been intended to push the deceased into such a position that he committed suicide.
29. 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 18 CRR No. 732 of 2016 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 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...."
30. 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 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 19 CRR No. 732 of 2016 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."
31. 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."
32. 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 20 CRR No. 732 of 2016 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".
33. 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 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"21 CRR No. 732 of 2016
34. 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."
35. The Supreme Court in the case of Kishori Lal vs. 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 22 CRR No. 732 of 2016 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."
36. 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 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 23 CRR No. 732 of 2016 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 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."
37. The Supreme Court in the case of Madan Mohan Singh Vs. State of Gujarat reported in (2010) 8 SCC 628 has held as under :
12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is 24 CRR No. 732 of 2016 required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC.
We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note.
13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306 IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-
examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta v. State of W.B. (2005) 2 SCC 659, this Court had quashed the proceedings initiated against the accused.
38. 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.
39. If the facts of the case are considered in the light of the judgments passed by the Supreme Court, then the following 25 CRR No. 732 of 2016 circumstances would emerge :
(i) That the deceased was a married woman having a child and was the resident of Mumbai and had shifted to Gwalior all alone, to do job.
(ii) That the applicant no.1 and the deceased Smt. Savita Rane were friends and the deceased Smt. Savita Rane was living as a paying guest in the house of the applicants.
(iii) That the applicants are closely related to each other and are residing in the same house along with other family members.
(iv) That on 16-4-2016, the deceased Smt. Savita Rane had tried to commit suicide and had extended the threat that she would implicate the applicants.
(v) That the deceased was immediately taken to the police station, where She executed a compromise letter.
(vi) That the deceased Smt. Savita Rane requested Abhishekh Moge to get a railway ticket reserved for Mumbai on 17-4-2016.
(vii) On 17-4-2016, the friends of deceased Smt. Savita Rane went to Railway Station to see her off but She did not come to the Railway Station and gave a false information that She is on the way but in fact she checked in Hotel Ambience and stayed in Room no. 109.
(viii) That on 18-4-2016, the hotel employees received a telephone from one Smt. Riya, resident of Mumbai, that the deceased Smt. Savita Rane is not picking up her phone.
(ix) The hotel staff checked the room and found that the deceased Smt. Savita Rane had committed suicide by hanging herself.
(x) The police recovered one suicide note as well as a letter written in Marathi by the deceased Smt. Savita 26 CRR No. 732 of 2016 Rane.
(xi) No body from the family of the deceased Smt. Savita Rane came from Mumbai to receive her dead body and the funeral was performed by the members of Marathi Society.
(xii) In the suicide note, the deceased Smt. Savita Rane had levelled an allegation that the applicants are homosexual and they have spoiled her life.
(xiii) In the letter written in Marathi, the deceased apart from mentioning that the applicants have spoiled her life, had also mentioned that because of her one mistake, her family life has been ruined and She tendered apology to her husband, son etc.
(xiv) In the letter the deceased Smt. Savita Rane has expressed that She had certain grievances against the applicants, however, those grievances have not been clarified.
(xv) The police did not conduct any investigation with regard to the relationship of the deceased Smt. Savita Rane with her in-laws and did not take note of the fact that nobody had come to receive her dead body and even the funeral was done by the members of the Marathi Society.
(xvi) Apart from the suicide note, there is no evidence on record which may indicate towards the strained relationship of the deceased Smt. Savita Rane with the applicants.
40. Thus, it is clear that the deceased Smt. Savita Rane had levelled an allegation against the applicants that they are homosexual, and they have spoiled her life and they should be punished but there is nothing on record from which an inference may be drawn that the applicants had created such a situation where the deceased Smt. Savita Rane was left with 27 CRR No. 732 of 2016 no other option but to put her life to an end. The inference which has been suggested by the Counsel for the State that the deceased Smt. Savita Rane wanted to leave her unnatural style of living but She was not allowed to do so and She was being compelled to live the unnatural style of living cannot be accepted as there is not a single whisper in the suicide note or in the letter written by deceased Smt. Savita Rane to the effect that She was also forced to adopt the unnatural lifestyle. Undisputedly, the deceased Smt. Savita Rane was the resident of Mumbai where She had husband, son and other in-laws inspite of that She shifted to Gwalior all alone in connection with her job and was living as a paying guest in the house of the applicants. The deceased Smt. Savita Rane was living at Gwalior for the last several years. If She was not happy with the applicants, then She could have either changed her place of residence or She could have gone back to Mumbai, but as she continued to live in Gwalior without making any complaint, then it cannot be inferred that She was compelled by the applicants to live an unnatural style of life. No investigation has been done by the police with regard to her relations with her in-laws. In the letter, She had mentioned that her one mistake had spoiled her family life. What was that mistake has not been investigated by the police. The husband, child or other in-laws of the deceased Smt. Savita Rane could have thrown some light in the matter, but no investigation was done by the police in that direction. According to the prosecution, a phone was received at the reception from one Riya, from Mumbai, but the police has also not recorded the statement of Riya. It appears that the police had investigated the matter with a sole conclusion that as the deceased Smt. Savita Rane had certain grievances against the applicants therefore, it should be inferred that the applicants had abetted the deceased to commit suicide leaving certain questions 28 CRR No. 732 of 2016 unanswered.
41. Be that as it may. The crux of the matter is that the deceased had certain grievances against the applicants. She was feeling alone and was upset because her family life was ruined, but no inference can be drawn that it was the applicants who had ruined her family life.
42. Under the facts and circumstances of the case, it cannot be inferred that the applicants created such a situation before the deceased Smt. Savita Rane, where She was left with no other option but to commit suicide. No inference can be drawn that the applicants, had abetted the deceased to commit suicide
43. Accordingly, this Court is of the considered opinion that even if the entire allegations are accepted in toto, at the most it can be inferred that the deceased Smt. Savita Rane had some grievances against the applicants, but there is nothing on record which may indicate that what were those grievances? Under these circumstances, no inference can be drawn against the applicants that they at any point of time had abetted the deceased to commit suicide.
44. Consequently, the order dated 18-7-2016 passed by 11 th A.S.J., Gwalior in S.T. No. 202/2016 is hereby set aside. The applicants are discharged.
45. This revision succeeds and is hereby allowed.
(G.S. AHLUWALIA)
(alok)* Judge