Rajasthan High Court - Jaipur
Vimlesh @ Poonam vs State Of Rajasthan Through Pp on 16 February, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Criminal Revision No. 2115 / 2016
Vimlesh @ Poonam W/o Shri Sanjay Sharma B/c Brahmin, R/o
House No.100, Shastri Nagar, Dadabadi Kota, Rajasthan.
----Petitioner
Versus
State of Rajasthan Through P.P.
----Respondent
_____________________________________________________
For Petitioner(s) : Shri Suresh Sahni
Shri R.M. Sharma
For Respondent(s) : Smt. Sonia Shandilya, Public Prosecutor.
_____________________________________________________ HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Order 16/02/2017 REPORTABLE
1. By this criminal revision, petitioner has assailed order dated 23.5.2016 passed by learned Additional Sessions Judge No.1, (Women Atrocities Act Cases), Kota in Sessions Case No.13/2016, based on FIR No.33/2016 registered at Police Station Dadabadi, Kota whereby, the petitioner was charged for offence u/s 306 IPC.
2. Story of prosecution as emerged out after investigation is that deceased Kunika aged about 17 years was residing on ground floor with her parents - Ajay Sharma & Smt. Rama Sharma and brother Kunal Sharma. Umashanker Sharma - Grand- father of the deceased, Sanjay Sharma - uncle and Smt. Poonam @ Vimlesh (petitioner) - aunt of the deceased are residing on 1 st (2 of 7) [CRLR-2115/2016] Floor. Some students were also residing on rent on the ground floor. Since last three years, there is a dispute with regard to property between father and uncle of the deceased. On 28.12.2015 when Kunika sitting in Chowk was preparing vegetable for cooking, some garbage, inclusive of plastic cap and cluster of hair, thrown from 1st Floor, fell upon her head. Thereupon, Kunika turning his face up, warned to be careful while throwing garbage. In response, Poonam Sharma @ Vimlesh asked whether her head/forehead was broken, bleeded or injured, हर म ज द . Kunika told her to talk with decency. Whereupon, aunt of Kunika said "हर म ज द , छनदय ड, रणड त इधर उधर घमत fQj त ह त मर ज ए त अचछ ह" । When mother of the deceased tried to intervene, Poonam @ Vimlesh retorted that she is root of dispute and if she dies, it is better and asked the deceased "you go and jump into Chambal or take poison and die so that peace may be restored in the house". After sometime, hot talks ended. Deceased and her mother went away into the room. Mother of the deceased went to take bath. When she came out after ½ hour from bathroom, she saw Kunika vomiting in the sink. Mother of Kunika called for help to the students living on the ground floor. They came there and took Kunika on motorcycle to Bharat Vikas Parishad Hospital and thereafter to Maharao Bheem Singh Hospital where she collapsed. FIR was registered on information given by father of the deceased. She had taken some insecticide which is used for conservation of crop. During investigation, a suicide note was recovered from dead body of Kunika, which is as follows :
"Sorry ! (3 of 7) [CRLR-2115/2016] Seriously aaj monday he mane subha se pani bhi nhi piya tha sach me bhagwan ksm but fir bhi chachi ne jo kiya galt kiya. Agar me ladi ki wajha hu to aaj se ye wajha khatam ho jayagyi ! Sorry sabko aur mummy papa bhaiya aapko hurt kiya to uske liya bhi sorry love u to all aur chini meri jaan terko bhi Bye Nd Hurt kiya ho to sorry. Love u my bestie.
Bye forever ! Nd Sorry ! Sd/-
Kunika"
3. Postmortem was conducted on the dead body. No external or internal injuries were found. Samples of viscera were collected and sent for test to the Forensic Science Laboratory. Medical Officer reserved his opinion with regard to cause of death till receipt of report of chemical analysis of viscera. The handwriting found on the suicide note was sent to the FSL for comparison with undisputed handwriting of the deceased. As per report of FSL dated 30.5.2016, disputed handwriting marked as "Q1" was having similarities with admitted handwriting marked as "A1 to A20".
4. Learned counsel for the petitioner submitted that there is no iota of evidence to prove any abetment given by the petitioner to the deceased to commit suicide. Even in the suicidal note, the deceased did not allege such abetment given by the petitioner. The suicidal note contains only - "फिर भ pkph us tks fd;k xyr fd;kA vxj esa yM+kbZ dh otg gwW rks vkt ls ;s otg [kRe gks tk,xhA""It appears from bare reading of the alleged suicide note that deceased committed suicide of her own volition. It does not reveal any nexus between what the petitioner told her about 1½ hours prior to the suicide.
(4 of 7) [CRLR-2115/2016]
5. Learned counsel for the petitioner further submitted that the entire prosecution story, even if taken to be true, does not disclose any offence u/s 306 IPC against accused petitioner. Learned trial court committed serious error in framing charge u/s 306 IPC. Learned counsel has relied upon Manish Kumar Sharma v. State of Rajasthan, reported in 1995 CRI.L.J. 3066, Gautam Raj Mehta versus State of Rajasthan, reported in 1984 Cr.L.R. (Raj.) 646 and K.V. Prakash Babu versus State of Karnataka (Criminal Appeal No(s) 1138-1139 of 2016) decided by Apex Court on 22.11.2016.
6. Per contra, learned Public Prosecutor opposed the petition.
7. I have given thoughtful consideration to the rival submissions and gone through the material made available before me.
8. While referring, following observations, made in Pinakin Mahipatray Rawal v. State of Gujarat, reported in (2013) 10 SCC 48 :
"Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused.", the Apex Court observed in K.V. Prakash Babu's case (supra), in para No.16, as follows :
"16. The concept of mental cruelty depends upon the milieu and the strata from which the persons (5 of 7) [CRLR-2115/2016] come from and definitely has an individualistic perception regard being had to one's endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts."
9. In Bhanwar Lal v. State of Rajasthan, reported in 1988 Raj. Cri C 546, sections 306, 107 and 108 IPC were analysed and considered and following observations were made :
"According to the aforesaid definition, there should be either instigation or some conspiracy or intentionally aiding or illegal omission. 'To instigate' means to urge on, incite; to foment which in other words, means a positive action on the part of the instigator, as unless some thoughts are modified or put into action, there cannot be instigation. It requires stimulation as well as rousing while in intentional aiding it can be both by illegal omission as well as doing of that thing and that is why the legislature separately defines the word, 'abettor' wherein explanations 2 and 3 are relevant. Thus, the case has to be brought within the purview of one or the other explanation of Sec. 107 or 108 IPC."
10. In Manish Kumar Sharma's case (supra), the case of the prosecution was that when Smt. Kusum Devi and her son Anil were taking their meals on roof of the house, the accused petitioner came there. He demanded back his money and uttered the following words :-
"रड त मरत कय नह ह । मर स थ चल नह त तझ ज न स म र दग ।"
Smt. Kusum Devi, immediately went down stairs and consumed some tablets of salphos. Soon after, she started vomiting. She was taken to hospital but ultimately she died. While holding that demanding money given on loan is not an offence under any provisions of criminal law, a co-ordinate Bench of this court observed that whatever accused petitioner is said to have uttered to Smt. Kusum Devi was at best an out-burst of an angry mind. It was not calculated or designed to instigate Smt. Kusum Devi to put an end to her life by committing suicide.
11. In Gautam Raj Mehta's case (supra), Ram Babu was maternal brother of deceased Mohan. On hearing allegations of (6 of 7) [CRLR-2115/2016] theft against Mohan, Ram Babu spoken the following words to Mohan :
"त मर (रसतद र ह । तन हम र बदन म करव द । इसस त अचछ ह त त मर ज त ।"
A co-ordinate Bench of this court has held that the referred words cannot be considered sufficient for instigating Mohan to commit suicide. There is no evidence except the above statement made by Ram Babu and this cannot lead to the inference that by telling these words, the petitioner Ram Babu could have any knowledge at all that Mohan would commit suicide. The act of committing suicide by Mohan in this case cannot be considered as having any proximity or as a consequence or result of uttering any word by the accused petitioner Ram Babu.
12. In the back drop of above legal position when the instant matter is examined, it is found that the fact of death of Kunika after taking some tablets, meant for preserving crop, is proved from the evidence collected by police. So far abetment given by the petitioner is concerned, there are two sets of evidence on which prosecution has based its story; first is while abusing the deceased, petitioner had uttered some filthy words as quoted hereinabove to the deceased. Second is a suicide note recovered from the dead body.
13. It is to be seen that the filthy words, uttered by the petitioner just about one hour prior to the alleged suicide, were enough to instigate a person of common prudence or a person of average mental status to end up his/her life. The proximity is also to be seen between the words uttered and the action taken by the deceased. Since the report of FSL is prima facie corroborating that handwriting on the suicide note is similar to the undisputed handwriting of the deceased, it may be inferred that the suicide note recovered was, in fact, written by the deceased. Only question remains is as to whether the suicide note contains any words which indicate that the action taken by the deceased was a reaction of such utterances.
(7 of 7) [CRLR-2115/2016]
14. The filthy words used by the petitioner during altercation held between her and the deceased just about ½-1 hour prior to the suicide, as quoted earlier and all the circumstances taken cumulatively does not indicate any mens rea on the part of the petitioner. It is an admitted position that a dispute was there with regard to the house between the families of the petitioner and the deceased. Hence, if the petitioner made remarks attributed to her, it cannot be said that she wanted or intended Kunika to commit suicide. In view of Manish Kumar Sharma and Gautam Raj Mehta's cases (supra) the referred words cannot be said to be sufficient for instigating Kunika to commit suicide. The act of committing suicide by Kunika in this case, cannot be considered as having any proximity or a consequence or result of utterances made by the petitioner. Whatever accused petitioner is said to have uttered to Kunika was at the best an out- burst of an angry mind. It was not calculated or designed to instigate Kunika to put an end to her life by committing suicide.
15. The suicide note divulges an expression that her aunt did not do any good but none of the words used in the suicide note indicates that Kunika intended to commit suicide only due to the utterance made by her aunt or utterances were felt by Kunika so humiliating or instigating that she decided to react them in taking her own life.
16. Thus, in my view, the charge u/s 306 IPC framed against the petitioner is totally groundless and no case is made out, even prima facie, for framing charge against the petitioner u/s 306 IPC.
17. Therefore, the criminal revision is allowed and the charge u/s 306 IPC framed against the petitioner is quashed and order dated 23.5.2016 passed by learned Additional Sessions Judge No.1, (Women Atrocities Act Cases), Kota is set aside.
This disposes of the stay application as well.
(VIJAY KUMAR VYAS), J.
chauhan/