Telangana High Court
Basipongu Priyanka vs Shaik Mahaboob Hussain on 9 December, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
Criminal Revision Case No.297 of 2020
ORDER:
This Criminal Revision Case is filed by the petitioner-Accused No.3 aggrieved by the order dated 06.02.2020 passed in Crl.M.P. No.30 of 2018 in SC No.388 of 2015 by the Assistant Sessions Judge, Khammam, in dismissing the discharge petition filed by her.
2. The case of the prosecution in brief was that on 27.09.2014 at 11.00 AM, the de facto complainant (father of the deceased No.1) lodged a report before the Police, Khammam I-Town Police Station, stating that he got married his daughter with A1 on 15.11.2007. Out of the said marriage, they were having a son, aged about 3 years. His daughter and son-in-law were also living with them in the same house at Ricca Bazar, Khammam. His son-in-law (A1) was working as an Urban Mandal Revenue Inspector. Due to work load, he engaged one Sunkara Ravi - A2 to look after his personal works. A2 used to drop and pick up A1 for his duty. A2 made friendship with A1 and got addicted him to liquor and other bad vices and got developed illegal intimacy with one Priyanka - A3. At the instigation of A2, A1 started harassing his daughter. A1 was not coming home since 05.09.2014. On 26.09.2014, at about 10.00 PM, after having dinner, the 2 Dr.GRR,J crlrc_297_2020 complainant and his wife slept in their room. His daughter and his grandson slept in another room. On 27.09.2014 at about 7.30 AM or 8.00 AM, as his daughter or grandson did not come outside, his wife went and observed from the window and found his daughter hanging to a ceiling fan and grandson lying on the bed with froth from his mouth.
3. Basing on the said report, the Inspector of Police registered a case vide Crime No.412 of 2014 under Sections 498-A, 302, 306 read with 109 IPC and issued FIR. After conducting investigation, the Inspector of Police deleted Section 302 IPC and filed charge sheet against A1 to A3 for the offences under Sections 498-A, 306 IPC and Section 3 of the Dowry Prohibition Act (for short 'DP Act').
4. The petitioner-A3 filed a discharge petition under Section 227 Cr.P.C. stating that there was no prima facie material to link or to connect her with the offences. The charge sheet filed by police did not reveal the proximity or nexus of the acts of A3 or any active role played by her in committing of suicide by the deceased No.1. There was neither instigation, intentional aid or engaging in conspiracy so as to attract the ingredients of abetment as defined under Section 107 IPC to constitute the offence under Section 306 IPC. There was no mens rea at all. The Accused No.3 was neither relative nor neighbor or in any way connected with the 3 Dr.GRR,J crlrc_297_2020 family of the deceased No.1. Even as per the charge sheet, on the fateful day on 27.09.2014, A3 was neither present at the scene of offence or at the vicinity of the scene of offence nor she had any contact or conversation with the deceased before her committing suicide. A3 was falsely implicated without there being any role or any part played by her in the said crime and charge sheet was filed against her showing her as A3 without there being any credible material. Conducting the trial against A3 without any material would be an exercise in futility and prayed to allow the discharge petition.
5. The prosecution filed counter objecting the discharge petition filed by A3 on the ground that A1 had illicit intimacy with A3 and the same was the main cause for the suicidal death of the deceased No.1. Section 161 Cr.P.C. statements of LWs.8 and 9 would show that A3 was living with A1 in the house of LW.9, and prayed to dismiss the petition.
6. On hearing both the counsel, the trial court dismissed the petition, observing that the statement of LW.9 would show that A3 was living along with A1 in the house of LW.9, it would be premature to make observations on the veracity of 161 Cr.P.C. statement of LW.9, without testing her statement in the course of trial, besides A3 to establish her defence and seek acquittal after trial and relying upon the judgment of the Hon'ble 4 Dr.GRR,J crlrc_297_2020 Apex Court in ME. Sivalinga Murthy v. CBI, Bangalore1, dismissed the petition.
7. Aggrieved by the said dismissal, the petitioner-A3 preferred this revision contending that the trial court failed to see that the ingredients of Section 306 IPC were not made out against the petitioner-A3 as there was no allegation that she aided, abetted or instigated the deceased to commit suicide. The allegation that A1 developed illegal intimacy with A3 would not make out an offence under Section 306 IPC against her. The name of A3 was not found in the FIR. The incident of hanging of deceased No.1 occurred in the house of the de facto complainant. Even as per the prosecution case, A1 stopped going to the house from 05.09.2014 and the incident took place on 26.09.2014. Thus, there was no possibility of any of the accused abetting the suicide of the deceased, as they had no contact with the deceased. The petitioner-A3 was not the family member of A1 and the offences punishable under Section 498-A IPC and Section 3 of DP Act were not made out against A3 and prayed to set aside the impugned order of the court below.
1 2020 (2) SCC 768 5 Dr.GRR,J crlrc_297_2020
8. Heard learned counsel for the petitioner-A3, the learned counsel for the respondent No.1-de facto complainant and the learned Additional Public Prosecutor.
9. The learned counsel for the revision petitioner-A3 argued on the same lines as raised in the grounds of revision.
10. The learned counsel for the respondent No.1-de facto complainant vehemently contended that there was abundant material on record to establish that A3 developed illicit intimacy with A1 and they were living together as husband and wife by the time of the unfortunate incident of committing suicide by deceased No.1. There was also common intention and conspiracy between them to drive deceased No.1 to commit suicide. Though the petitioner did not harass or ill-treat the deceased No.1 directly, she indirectly did it. The petitioner filed the discharge petition with an abnormal delay as a second thought only with a malafide intention to protract the proceedings further. The 161 Cr.P.C. statements of LWs.8 and 9 would disclose the name of the petitioner and her living in matrimonial life with A1, on account of it, A1 harassed and ill-treated the deceased No.1 and prayed to dismiss the revision case.
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11. The learned Additional Public Prosecutor also supported the arguments of the learned counsel for the respondent No.1-de facto complainant.
12. Perused the record. As seen from the charge sheet, A1 developed illicit relationship with A3 and started harassing his wife stating that he was enjoying life only then and asking her to learn from that woman as to how to behave with husband and that he was not coming home since 05.09.2014 and started to live with A3 in a single bed room house belonging to LW.9. Vexed with the attitude of A1, as he was not coming home for the past 15 days, deceased No.1 mixed poison in the food of her son and she also consumed some food and after the death of her son, she committed suicide by hanging to the ceiling fan. The father of the deceased No.1 lodged the complaint stating that his son-in-law Rasheed (A1) and his friend Sunkara Ravi (A2) were responsible for the death of his daughter. His son-in-law with the friendship of A2 was addicted to alcohol and was having illegal relationship with a lady introduced by A2 and was residing with her and was harassing his daughter physically and mentally that he would marry that lady. Unable to bear such torture, his daughter lost interest on life and gave poison to her son and hanged herself to the ceiling fan in the house and died.
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13. LW.8 is a circumstantial witness who stated that he saw A1 staying with a lady in Indira Nagar, behind Kalanikethan Bazar. One day he asked A2 as to who was that lady with whom A1 was staying, then A2 told him that since there were disputes in the house of A1, he was staying with that lady. He thought of informing the matter to the complainant, but due to pressure of work, forgot to inform the same. Later, he came to know that A1 was harassing his wife due to his illegal relationship with that lady.
14. LW.9 was the house owner where A1 and A3 resided together. LW.9 stated that A2 approached her and stated that he required a rented house for his officer, who was newly married and paid her advance on 04.09.2014. On the next day i.e. on 05.09.2014, A2 along with another man and a lady came and joined as tenants and when she asked the name of that lady, she stated her name as Priyanka, native of Nandigama and her husband was native of Madhira village and he had three buildings in Madhira and also told that her husband was working in Irrigation department. LW.9 further stated that A2 used to take A1 on bike and drop him at home. On 28.09.2014, while reading the newspaper, she came to know that the name of the tenant of her house was Shaik Rasheed and he was having illegal relationship with that lady and was harassing his wife physically and mentally.
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15. The learned counsel for the petitioner - A3 relied upon the judgment of the Hon'ble Apex Court in S.S. Chheena v. Vijay Kumar Mahajan and another2 on the aspect that in order to constitute the offence under Section 306 IPC, there should be abetment to commit a person to suicide and abetment is defined under Section 107 IPC. To constitute abetment, there must be either instigation of any person to do that thing or engage with one or more other persons in conspiracy for doing the act or illegal omission in pursuance of that conspiracy or intentional aid by any act or illegal omission, the doing of that thing and while referring to its earlier judgments in State of West Bengal v. Orilal Jaiswal3 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 the accused charged of abetting the offence of suicide should be found guilty."
16. It also referred to its earlier judgment in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)4, and held that:
2
2020 (12) SCC 190 3 1994 (1) SCC 73 4 2009 (16) SCC 605 9 Dr.GRR,J crlrc_297_2020 "This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
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."
17. The learned counsel for the respondent No.1-complainant relied upon the judgment of the Hon'ble Apex Court in M.E. Sivalinga Murthy v. CBI, Bangalore (1 supra), which was also relied by the trial court in dismissing the petition, wherein it was held that:
"The defence of the accused cannot be looked into at the stage of discharge. The accused has no right to produce any document at that stage. The court must, without making a roving enquiry into the pros and cons, consider the broad probabilities, the total effect of the materials before it, any basic infirmities appearing in the case etc. Probative value of material on record cannot be gone into. Material brought on record by prosecution has to be accepted as true. Existence of some material to entertain strong suspicion is essential to draw up a charge and refuse to discharge accused."10
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18. He also relied upon the judgment of the Hon'ble Apex Court in Padal Venkata Rama Reddy v. Kovvuri Satyanarayana Reddy and others5, wherein it was held that:
"The High courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution.
When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judg.e The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in State of Haryana Vs. Bhajan Lal [1992 Supp (1) SCC 335].
It would not be proper for the High Court to analyse the case of the complainant in the light of all the probabilities in order to determine whether conviction would be sustainable and on such premise arriving at a conclusion that the proceedings are to be quashed. In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case in which complaint does not disclose any offence or is frivolous, vexatious or oppressive. There is no need to analyse each and every aspect meticulously before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. The statement of witnesses made on oath to be verified in full and materials put forth in the charge sheet ought to be taken note of as a whole before arriving any conclusion. It is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons."
19. He further relied upon the judgment of the Hon'ble Apex Court in Priti Saraf and Ors. v. State of NCT, Delhi and Ors.6 on the aspect that: 5
2011 (12) SCC 437 6 AIR 2021 SC 1531 11 Dr.GRR,J crlrc_297_2020 "Whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings."
20. He also relied upon the judgment of the Hon'ble Apex Court in Dinesh Tiwari v. State of U.P.7, wherein it was held that:
"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not."
21. He also relied upon the judgment of the Hon'ble Apex Court in Palwinder Singh v. Balwinder Singh and Ors.8, wherein it was held that:
"Jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time."
22. He also relied upon the judgment of the State of Rajasthan v. Ashok Kumar Kashyap9, wherein it was held that:
"It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, 7 2014 (13) SCC 137 8 AIR 2009 SC 887 9 2021 (2) MLJ Crl.471 12 Dr.GRR,J crlrc_297_2020 taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.... At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible."
23. Section 227 Cr.P.C., under which the petitioner-A3 filed the petition for discharge, reads as follows:
"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."
24. The court is required to consider the record of the case and the documents submitted therewith and after hearing the parties, may discharge the accused or in its opinion if there is ground for presuming that the accused has committed an offence, frame charges. Once the facts and ingredients of Section exist, then the court would be right in presuming that there was ground to proceed against the accused and frame the charge accordingly. The Hon'ble Apex Court in Amith Kapor v. Ramesh Chander and another10 held that:
"The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is 10 2012 (9) SCC 460 13 Dr.GRR,J crlrc_297_2020 an approach which is impermissible in terms of Section 228 of the Code.
At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."
25. The accused No.3 is charged for the offence under Section 498-A, 306 IPC and Section 3 of the DP Act.
26. Section 498-A IPC is pertaining to cruelty or harassment by the husband or relatives of the husband. The same is not applicable to the petitioner-A3, who is alleged to be in illegal relationship with A1 (husband of deceased No.1).
27. Section 3 of DP Act is pertaining to demand of dowry and the same is also not applicable to the petitioner-A3 as there were no allegations against the petiteioner-A3 in the said regard.
28. The only other charge against the petitioner-A3 is under Section 306 IPC. To constitute an offence under Section 306 IPC there should be abetment to commit suicide. As observed by the Hon'ble Apex Court in the case of S.S. Chheena v. Vijay Kumar Mahajan and another (2 supra), abetment includes instigating, conspiring with another person to do the said act or intentionally aiding. Even as per the charge sheet, the 14 Dr.GRR,J crlrc_297_2020 petitioner-A3 had never come in contact with the deceased No.1. Living in illegal relationship with A1 itself is not sufficient to constitute the offence under Section 306 IPC. There must be a positive act on the part of the accused to instigate or aid in committing suicide. It also involves a mental process of instigating a person or intentionally aiding a person in doing that thing. There has to be a clear mens rea to commit the offence. The contents of charge sheet or the 161 Cr.P.C. statements of LWs.8 and 9 would not reveal that the petitioner-A3 played active role or instigated or aided the deceased No.1 in committing suicide. The contention of the learned counsel for the respondent No.1-de facto complainant that the petitioner though directly had not forced the deceased to commit suicide, she indirectly did it, would have no force as the same would not constitute the offence under Section 306 IPC. As such, this court does not find any merit in the contention of the learned counsel for the respondent No.1- complainant. The citations relied by him are not applicable to the facts of this case. It would be a travesty of justice to compel the petitioner to face the criminal trial without any material to frame charges for the offences under Sections 498-A, 306 IPC and Section 3 of the DP Act. As such, it is considered fit to allow the revision by setting aside the orders of the trial court in dismissing the discharge petition filed by the petitioner-A3. 15
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29. In the result, the Criminal Revision Case is allowed setting aside the order dated 06.02.2020 passed in Crl.M.P. No.30 of 2018 in S.C.No.388 of 2015 by the Assistant Sessions Judge, Khammam, in dismissing the discharge petition filed by the petitioner-A3.
As a sequel, miscellaneous petitions pending if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J December 09, 2022 KTL