and the ratio of the cases decided
by this Court are 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.
However in my opinion mere harassment of wife by husband
due to differences perse does not attract Section 306 read with
section 107 of the Code, if the wife commit suicide.
In the present case also evidence collected by the
prosecution indicates that there is no overt act fall within the
purview of Sections 107 and 109 of the Code and therefore,
prima facie no offence punishable under Section 306 of the Code
is made out against the petitioner. For the forgoing reasons, I am
of the opinion that the impugned order framing charge under
Section 306 of the Code of the petitioner/accused deserves to be
set aside.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE SUSHIL KUMAR GUPTA
CRIMINALREVISION NO.457/2012
Pappu Khare Vs State of M.P.
Dated:29/01/2015
1. By invoking the supervisory jurisdiction of this Court
petitioner has preferred this petition under Section 397/401 of the
Code of Criminal Procedure 1973 (in short “the Code”) calling in
question the impugned order dated 19.06.2012 passed by First
Additional Sessions Judge Dabra, District Gwalior in
S.T.No.218/2012 whereby the charges of offence punishable
under Section 306 of Indian Penal Code (in short “the Penal
Code”) was framed against the petitioner.
2. The prosecution case, in short, is that on 02.01.2012 at
22:45 o'clock Dr. D.R. Sagar Civil Hospital Dabra informed at
Police Station Dabra that a woman named Bhagwati Valmik has
been brought in the hospital in dead condition. On this
information, a Merg No.3/2012 was registered. During Merg
enquiry, it was found that deceased-Bhagwati has died because
the petitioner was having illicit relation with wife of Prakash
Valmeek of Badoonkala. Because of this reason petitioner used to
beat and harassed the deceased-Bhagwati. Six months before the
death of the deceased the petitioner beat the deceased by means
of lathi by which hand of the deceased got fractured. Thereafter
the petitioner demanded Rs.One Lac, on refusal the petitioner told
to kill the deceased. Because of all these reasons the deceased
committed suicide by hanging herself. Thereafter, offence under
Section 306 of the Code has been registered against the
petitioner and after investigation charge-sheet has been filed.
After receiving the case on committal, Trial Court framed the
charges against the petitioner under Section 306 of the Penal
Code.
3. Learned counsel appearing for the petitioner vehemently
submitted that the ingredients of the offence under Section 306 of
the Code are not fulfilled and no iota of evidence is available on
record to implicate the petitioner. He further submitted that
learned Trial Court has erred in law in framing charge against the
petitioner for the offence punishable under Section 306 of the
Code while no material evidence available on record to prove the
fact that the petitioner has abated or instigated the deceased to
commit suicide. To Bolster his submissions counsel relied on the
judgment of Hariom Vs. State of MP reported in 2007(1) MPLJ
195, Santosh Vishwakarma and another Vs. State of MP (Now
CG) reported in 2004 (3) MPHT 57 (CG), State of M.P. Vs.
Ganesh Ram reported in 1997(II) MPJR 163, Dayalan Babu &
another Vs. State reported in 2011 CRLJ 359, Mahendra Singh
and another VS. State of M.P. reported in 1995 AIR SCW 4570,
Bhagwan Das Vs. Kartar Singh and others reported in AIR
2007 SC 2045, S.S. Chheena Vs. Vijay Kumar Mahajan and
another reported in (2010) 12 SCC 190 and M. Mohan Vs.
State reported in AIR 2011 SC 1238.
4. Learned PP for the respondent/State has fully supported the
impugned order passed by the Lower Court and submitted that
there is prima facie evidence available on record against the
petitioner for framing the charges under Section 306 of the Code.
He further submit that Smt. Geetabai, Anand Kumar and Mohan
are respectively mother and brothers of the deceased have
categorically stated in their statement that the deceased was
depressed and disappointed as petitioner was having illicit relation
with one Meena. Hence, learned PP prayed for dismissal the
petition.
5. Firstly I would like to deal with the relevant provision of
Sections 306, 107 and 109 of IPC.
Section 306 - Abetment of suicide Code reads as under :
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.
Section 107 - Abetment of a thing reads as under :
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 lakes 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.
Section 109 - Punishment of abetment if the act abetted is
committed in consequence, and where no express provision is
made for its punishment reads as under :
Whoever abets any offence shall, if the act abetted is
committed in consequence of the abetment, and no express
provision is made by this Code for the punishment of such
abetment, be punished with the punishment provided for
the offence.
Explanation.--An act or offence is said to be committed in
consequence of abetment, when it is committed in
consequence of the instigation, or in pursuance of the
conspiracy, or with the aid which constitutes the abetment.
6. As section 306 of IPC makes abetment of commission of
suicide punishable, therefore, making liable for an offence
punishable under Section 306 of IPC, it is the duty of prosecution
to establish that such person has abated the commission of
suicide and for the purpose of determining the act of the accused,
it is necessary to see that his act must fall within the purview in
any of the three categories as enumerated under Section 107 of
the Code and, therefore, it is necessary to prove that the said
accused has instigated the person to commit suicide.
7. When I considered the facts of the present case in the light
of the above Principle of law, it becomes candidly clear that there
is no abetment and instigation caused by the petitioner to drove
her to commit suicide. Although witness stated that petitioner
having illicit relation with another woman meena and even on
objecting did not stop these relation due to which the deceased
was depressed. After that deceased committed suicide but that
not amounts to abetment or instigation within the purview of
Section 107 of IPC.
8. Our High Court and Hon'ble Supreme Court has considered
the scope of Sections 107 and 306 of the Code in many cases. In
Sanju Vs. State of M.P. (2002) 5 SCC 371 the Hon'ble Apex Cout
in paragraphs 9 to 12 observed as under :
“Para 9. In Swamy Prahaladdas Vs. State of M.P. And another,
1995 Supp (3) SCC 438, the appellant was charged for an offence
under Section306 of IPC on the ground that the appellant during the
quarrel is said to have remarked the deceased “to go and die”. This
Court was of the view that mere words uttered the accused to the
deceased “to go and die” were not even prima facie enough to
instigate the deceased to commit suicide.
10. In Mahendra Singh Vs. State of M.P. 1995 Supp (3) SCC
731, the appellant was charged for an offence under Section 306 of
IPC basically based upon the dying declaration of the deceased,
which reads as under :
My mother-in-law and husband and
sister-in-law (husband's elder
brother's wife) harassed me. They
beat me abused me. My husband
Mahendra wants to marry a second
time. He has illicit connections with
my sister-in-law. Because of those
reasons and being harassed I want
to die by burning.
11. This Court, considering the definition of 'abetment' under
Section 107, of the Code, found that the charge and conviction of
the appellant for an offence under Section 306 is not sustainable
merely on the allegation of harassment to the deceased. This
Court further held that neither of the ingredients of abetment are
attracted on the statement of the deceased.
12. In Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC
618, this Court while considering the charge framed and the
conviction for an offence under Section 306 of the Code on the
basis of dying declaration recorded by an Executive Magistrate,
which she had stated that previously there had been quarrel
between he deceased and her husband and on the day of
occurrence she had a quarrel with her husband who had said that
she could go wherever she wanted to go and that thereafter she
had poured kerosene on herself and had set fire. Acquitting the
accused this Court said :
A word uttered in a fit of anger or
emotion without intending the
consequences to actually follow
cannot be said to be instigation. If
it transpires to the Court that a
victim committing suicide was
hypersensitive to ordinary
petulance, discord and difference
in domestice life quite common to
the society to which the victim
belonged and such petulance
discord the difference 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 for
abeting the offence of suicide
should be found guilty.”
9. For framing of charge the Hon'ble Apex Court in the matter
of State of MP Vs. S.B. Johari and others reported in 2000 (3)
MPHT 164 = 2000 (1) JLJ 142 has been held that -
“At the stage of framing the
charge, the Court has to prima
facie consider whether there is
sufficient ground for proceeding
against the accused. The Court is
not required to appreciate the
evidence and arrive at the
conclusion that the materials
produced are sufficient or not for
convicting the accused. If the
Court is satisfied that a prima facie
case is made out for proceeding
further then a charge has to be
framed. The charge can be
quashed in the evidence which the
prosecutor proposes to adduce to
prove the guilt of the accused,
even if fully accepted before it is
challenged by cross-examination
or rebutted by defence evidence, if
any, can not show that accused
committed the particular offence.
In such case, there would be no
sufficient ground for proceeding
with the trial.”
10. In the matter of Niranjan Singh Karam Singh Punjabi etc.
Vs. Jitendra Bhimraj Bijjayya and others, etc., reported in
(1990) 4 SCC 76, the Hon'ble Apex Court has held that :-
“At the stage of framing the charge
inquiry must necessarily be limited
to deciding if the facts emerging
from such materials constitute the
offence with which the accused
could be charged. The Court may
peruse the records for the limited
purpose, but it is not required to
marshal it with a view to decide the
reliability thereof.”
11. In the matter of M. Mohan Vs. State reported in AIR 2011
SC 1238, the Hon'ble Apex Court has held that :-
45. 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.
46. The intention of the Legislature
and the ratio of the cases decided
by this Court are 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.
12. However in my opinion mere harassment of wife by husband
due to differences perse does not attract Section 306 read with
section 107 of the Code, if the wife commit suicide.
13. In the present case also evidence collected by the
prosecution indicates that there is no overtact fall within the
purview of Sections 107 and 109 of the Code and therefore,
prima facie no offence punishable under Section 306 of the Code
is made out against the petitioner. For the forgoing reasons, I am
of the opinion that the impugned order framing charge under
Section 306 of the Code of the petitioner/accused deserves to be
set aside.
14. In the facts and circumstances of the case, for the forgoing
reasons, I am of the considered opinion that impugned order
framing charge against the petitioner under Section 306 of the
Code is hereby set aside. The petitioner is discharged from the
charge of offence punishable under Section 306 of the Code.
15. Accordingly, this revision petition is hereby allowed as
aforesaid.
16. Copy of this order be sent to the concerning Court for
necessary compliance.
(Sushil Kumar Gupta)
Judge
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