Madhya Pradesh High Court
Vijendra Singh @ Vijay Singh vs The State Of Madhya Pradesh on 1 August, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
MISC. CRIMINAL CASE No. 50984 of 2021
BETWEEN:-
VIJENDRA SINGH @ VIJAY SINGH S/O BHARAT
SINGH, AGED ABOUT 20 YEARS, OCCUPATION:
1.
AGRICULTURE VILL-KOTDA (MADHYA
PRADESH)
RITURAJ SINGH @ JITENDRA SINGH RAJAWAT
S/O MANOHAR SINGH, AGED ABOUT 23 YEARS,
2.
OCCUPATION: STUDENT VILL. KOTDA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI SHADAB KHAN-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION
1. HOUSE OFFICER THR. P.S. NAHARGARH
(MADHYA PRADESH)
ISHWARLAL S/O OMPRAKASH VILLAGE
2.
KOTABAHADUR (MADHYA PRADESH)
.....RESPONDENTS
( BY SHJRI AMIT RAWAL- GOVERNMENT ADVOCATE)
(BY SHRI JERRY LOPEZ-ADVOCATE/COMPLAINANT.
This application coming on for orders this day, the court passed the
following:
Heard and reserved on : 12.07.2023
Order pronounced on : 01.08.2023
ORDER
Petitioners have filed the present petition under Section 482 of Cr.P.C. seeking quashment of FIR No.289/2020 registered at Police Station -2- Nahargarh, District Mandsaur for the offence punishable under Section 302, 506/34 of IPC and Section 3(2) (v) of SC/ST Act.
Facts of the case.....
2- An FIR No. 289/2020 was registered against these petitioners under Section 302, 506/34 of IPC and Section 3(2) (v) of the SC/ST Act on account of the death of Dashrath aged about 20 years. Police recorded the statements of his father Omprakash, Mother Shyamubai and brother Ishwarlal. On the basis of the statement and PM report, the death was found to be homicidal due to strangulation, therefore, Merg No.0/20 at the instance of Omprakash Suryawanshi was recorded.
3- As per the Merge information Omprakash resides alongwith his wife, Dashrath, Ishwarlal in Village Kotda Bahadur. Near about 05:00, Dashrath went to the bus stand, and his wife Shyamubai returned to the house at 06:00 pm. At 09:00, Omprakash went to the bus stand and saw that his wife Shyamubai, Rathul Dhangar and the deceased Dashrath were returning home. Shyamubai informed that at the bus stand the applicants Vijay and Jitendra assaulted Dashrath. After some time Vijay and Jitendra came to his house and Omprakash asked them why they assaulted Dashrath but they assaulted Dashrath in front of his house. At 11:00 pm, Ishwar made the call to Omprakash that Vijay is calling him and Dashrath to the bus stand and he would kill them. Ompraksh further disclosed that at about 11:00 pm, he and his wife went to sleep. The deceased Dashrat was sleeping alone in his room. The next day in the morning at about 06:30 am, Dashrath was found lying dead in bed and a row was tied to his neck. Omprakash also saw Dashrath lying in the bed and he was not aware of how his son died.
4- The Police registered an FIR and started investigation. Death body -3- was sent for postmortem and as per a report, prima facie, the death due to strangulation might be homicidal suicide or accidental depending on circumstantial evidence. In order to confirm the death SDOP, Mandsaur sought an opinion from the Gandhi Medical College Bhopal on three points: (i) Nature of Dashrath's death. (ii) what is the nature of the marks of rubbing on the elbow and (iii) under what circumstances the strangulation happened? The director of in-charge Medico-legal Institute sent a report to the Superintendent of Police, Mandsaur with the opinion that in the absence of any sign of struggle, scuffle or sign of intoxication the possibility of homicidal death due to strangulation cannot be confirmed. Secondly, looking at the photographs and the description made by different investigating agencies the death appears to be due to asphyxia as a result of partial hanging which is usually suicidal unless proved otherwise on the scientific ground. After the aforesaid report, instead of filing of charge-sheet under Section 302 of IPC, the final report was submitted under Section 506/34 and 306 of IPC read 3(2) (v) of SC/ST Act on 30.08.2020. Hence, this petition before this Court. Submissions ...
5- Learned counsel for the petitioner submits that as per the allegation in the FIR and statements of the witnesses these appellants assaulted the deceased at 09:00 pm at the bus stand as well as in house. Thereafter, he went to sleep in the house alone and the next morning, his dead body was found. It was nobody's case that these applicants instigated him to commit suicide. Hence these applicants have falsely been implicated in this crime. It is further submitted by the learned counsel that when police did not find evidence of murder then Charge-sheet under section 306 has been filed. As on today, the police are unable to say -4- beyond reasonable doubt that these applicants instigated Dashrath to commit suicide or that the assault by these applicants abated him to kill himself, then how they would charge proved in the trial. 6- The government Advocate opposes the aforesaid prayer by submitting that police conducted a detailed investigation and found that the Dashrath died in suspicious circumstances. Soon before death, he fought with these applicants, it is a matter of evidence that he was instigated to commit suicide by these applicants , therefore, at this premature stage , the findings cannot be given that the offence under Section 306 of IPC is not made out.
7- Learned counsel appearing for the objector tried to oppose the application but admits that the objector has turned hostile and did not support the case of the prosecution. Since the objector has turned hostile hence, he has no locus to oppose this petition.
Conclusions .....
6- Initially, the FIR was registered under Section 302, 506/34 of IPC and Section 3(2) (v) of SC/ST Act on a complaint made by the father of the deceased Omprakash that his son was assaulted by the applicants at bus stand, thereafter they came to the house and assaulted him again. Thereafter, 11:00 pm, his son went to sleep and these applicants had also left the house of 09:00 pm. On the next day, Dashrath was found dead on the bed. There are no allegations that these applicants again came back in the night to kill Dashrath . Despite that, the FIR was registered under Section 302 of IPC against these applicants. As per the report of the Director In-Charge Medico Legal Institute Bhopal, no sign of struggle, scuffle or sign of intoxication was found. The report says that if it would have been a homicidal strangulation then there would have been massive -5- multiple ligature marks all around the neck with massive injury on the neck muscles and para tracheal muscles of neck underneath of fracture of tracheal bone or cartilages, but nothing as such has been reported by any of the investigating agencies or autopsy surgeon rules out the possibility of homicidal strangulation. The possibility of self-strangulation has also been ruled out. If it is the case of self strangulation then both the ends of the ligature would have been in the hands of the deceased and the knot will be on the front of the neck but the situation is absent. It has also been revealed that non of the investigating agency has noted any disturbance, struggle, or sign in the room of the incident. The death due to asphyxia is confirmed but as per the medical legal expert that it appears due to asphyxia as a result of partial hanging. Even if it is held that it is a case of suicide of Dashrath then absolutely there is no allegation that these applicants instigated him for committing suicide. After filing of the charge-sheet, charges have been framed and the trial has begun. The brother of deceased Ishwar has been examined as PW-1 and he has not supported the case of prosecution even on the charge under Section 506 of IPC also. The Statement of Ishwar is reproduced below:
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7. Within two months of this incident, the father and mother of the deceased also committed suicide by way of hanging in the house, therefore, the complainant i.e. Ompraksh who lodged the FIR and the mother who saw these applicants assaulting the deceased are not available for examination and cross-examination in this trail. Hence the charges especially section 306 I.P.C. cannot be proved against the applicants as the brother of the deceased has turned hostile and the complainant and mother both have expired.
8- Even if the entire allegation is accepted as it is the offence under section 306 is not made out. The Apex Court in catena of judgment has held that the degree of cruelty to constitute abatement under Section 306 of IPC would be higher than the degree of harassment and cruelty to constitute any other offence. The mens rea to commit is sine qua non to convict the person under Section 306 of IPC. Learned counsel for the applicants further submits that Section 306 has two ingredients, firstly, suicidal death and secondly abatement thereof. It is nobody's case that including the husband of the deceased that these applicants used to torture her mentally and physically to provoke the deceased to commit suicide, hence, learned Sessions Judge has wrongly framed the charges under Section 306 of IPC and the applicants ought to have been discharged. 9- The assault and threatening to lodge the police report cannot come -8- under the category of instigation, provoke, or encourage to do an untoward act which that person would have otherwise not done. The Apex Court in catena of cases held that in order to punish under Section 306 of IPC for abatement, there must be mens rea in order to constitute abatement by instigation and there must be a direct inducement to do a culpable act as held by Apex Court in the case of Sanju @ Sanjay Singh Senger Vs. State of M.P. reported (2002) 5 SCC 371. Even if it is taken to be proved that these applicants used to quarrel on the issue of throwing garbage, it cannot be said that they abetted the deceased to commit suicide. No such criminal case lodged by these applicants has been brought on record. The deceased got terrified by the threats given by the applicants and committed suicide, therefore, in the considered opinion of this court, charges under Section 306/34 of IPC are not made.
10- In view of the above, FIR No.289/2020 registered at Police Station Nahargarh, District Mandsaur for the offence punishable under Section 302, 506/34 of IPC and Section 3(2) (v) of SC/ST Act against the applicants is hereby quashed.
Let copy of this order be sent to concerned court for information and compliance.
(VIVEK RUSIA) JUDGE praveen Digitally signed by PRAVEEN Date: 2023.08.03 18:37:24 +05'30'