Anurag @ Govinda vs State Of M.P

This petition preferred u/s. 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter, for short, 'the Code') being aggrieved by

order dated 30/10/2017 passed by Sessions Judge, 154/2017 in S.T. No. 574/2017, whereby charge for offence u/s. 306 of the IPC has been framed

against the applicant.

The facts of the case are in brief that from 30/05/2017 to 08/07/2017, on the pretext of marriage the applicant put the deceased- Nisha in the house

of one Siyaram at Ekta Nagar, Ujjain, where he committed rape upon the deceased-Nisha. Thereafter, when the applicant refused to marry deceased,

then deceased feeling harassed and humiliated committed suicide by hanging herself. On receiving the information regarding the incident the Merg No.

46/2017 was registered by Police Station-Dewas District-Dewas under Section 174 of the Cr.P.C. Dead-body of the deceased was sent for post-

mortem. During investigation, applicant and coaccused were arrested and call-details of their mobile phones were collected. Statement of the

witnesses were recorded and after completing the necessary formalities, charge-sheet has been filed, and vide impugned order dated 30/10/2017,

applicant was charged for an offence under Section 306/34 of the IPC.

It is submitted by the learned counsel for the applicant that the allegations made against the applicant, even if accepted in their entirety, do not make

out a case u/s. 306 of the IPC. It is submitted that to constitute abetment within the meaning of Section 107 read with Section 306 of the IPC, there

should be instigation, provocation, incitement, suggestion, persuasion or goading to commit suicide and that, the accused must have intended that the

deceased commits suicide.Reliance in this regard has been placed on Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 S.C.

1998 and Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618.

Per contra, it is submitted by the learned Public Prosecutor that prima-facie charge for offence under Section 306/34 of the IPC is made out against

the applicant on the basis of material available in the charge-sheet, therefore, it cannot be said that learned trial Court has committed any legal or

factual error in framing the charge for offence under Section 306 of the IPC.

Heard the learned counsel for the parties and perused the record.

Before adverting to the merits of the case it will be proper for this Court to first discuss the scope of consideration by this Court at the stage of

framing of charges because it is in this context that the present revision application is required to be adjudicated upon.

The Hon'ble Supreme Court in the case of Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135, has laid down the scope for

consideration in the following manner:-

“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the

Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section

has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused

has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained

the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the judge is

satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified

to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post

office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents

produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a

trial (see Union of India v. Prafulla Kumar Samal [ (1979) 3 SCC 4: 1979 SCC (Cri) 609]).â€​

In the context of above observation by the Hon'ble Supreme Court, now the facts of the present case are required to be discussed.

To constitute abetment within the meaning of Section 107 read with Section 306 of the IPC, it must be demonstrated that the accused had

instigated, provoked, incited, suggested or goaded the deceased to commit suicide and that, such result was intended by the accused. In a number of

decisions, the apex Court has considered whether assault or harassment simplicitor can amount to abetment within the meaning of Section 107 read

with Section 306 of the IPC. Each time, the apex Court has answered the issue in negative, stating that harassment or assault simplicitor cannot

amount to abetment. In this regard, we can usefully refer to the decision rendered by this Court in M.Cr.C. No.1742/2016 (Bittu @ Girriraj vs. State

of M.P., Order dated 08.03.2017, Bench Indore), wherein the legal position has been considered in the light of various pronouncements of Hon’ble

the apex Court; relevant paras whereof run as under:

'Abetment to commit suicide' is an offence under Section 306 of IPC punishable with imprisonment for a term which may extend to 10 years and

fine. Expression ‘Abetment’ has been defined in Section 107 of IPC which runs as under :-

Abetment of a thing.-- A person abets the doing of a thing, whoFirst.- 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

willful misrepresentation, or by willful 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. 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

In the State of Punjab Vs. Iqbal Singh, AIR 1991 SC 1532, the apex Court explaining the meaning and expanse of word ‘abetment’ as used

in Section 107 of IPC, has held as under:

“Abetment†as defined by Section 107 of the IPC comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for

the doing of that thing, and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who

abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word “instigateâ€

in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. The dictionary meaning of the word “aid†is to

give assistance, help etc.

In Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618, a three Judge Bench of the apex Court explaining the meaning and connotation of

word ""instigation"" has held as under ( para. 20):

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. the present one is not a case where the accused had by 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow

cannot be said to be instigation.

Taking note of the fact that each person's suicidability pattern is different from others and that each person has his own idea of self-esteem and

selfrespect, the apex Court in M. Mohan Vs. State, Represented by the Deputy Superintendent of Police, 2011 CRI.L.J. 1900 (S.C.), referring to its

earlier decision in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), 2009 (16) SCC 605, held that to constitute abetment, there should be

intention to provoke, incite or encourage the doing of an act by the accused.

Reference can also be made to the decision of the apex Court in Gangula Mohan Reddy Vs. State of AndhraPradesh, 2010 (Suppl.) Cr.L.R. (SC)

261, wherein the allegation was that the deceased was beaten by the accused and was also subjected to harassment, due to which he committed

suicide by consuming poisonous substance. The apex Court referring to its earlier decisions in Mahendra Singh & Anr. Vs. State of M.P., (1995)

Supp. 3 SCC 731 and Ramesh Kumar Vs. State of Chhatisgarh, (2001) 9 SCC 618, holding that offence of abetment to commit suicide under Section

306 of IPC is not made out, observed 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 sustainedâ€​.

In Deepak V. State of M.P., 1994 Cri. LJ 767 (M.P.), the deceased girl was threatened with defamation, if she refused to have sexual intercourse

with two accused; within an hour she committed suicide leaving a suicidal note.

Accepting the plea that the act of the accused might have been a reason for committing suicide but the same did not constitute abatement within the

meaning of Section 306 read with Section 107 of the IPC, it was held that -

“neither there was any intention nor any positive act on the part of the accused to instigate her or aid her in committing suicide. The two accused

persons, therefore, cannot be held guilty of the offence under Section 306 of the I.P.C. and their conviction on that count by the trial Court, is liable to

be set aside.â€​

In the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 S.C. 1998, the accused was charged under Section 306 of

IPC for abetting his brother-in-law to commit suicide; the accused allegedly said to him to 'go and die'; the deceased left behind a suicide note stating

that accused is responsible for his death. It was held that words “go and die†do not constitute instigation for mens rea of offence under Section

307 of IPC.

In Mahendra Singh and Anr. Vs. State of M.P., 1996 Cri.L.J. 894=1995 Supp (3) SCC 731, a case prior to the insertion of Section 113-A in the

Evidence Act, the charge under Section 306 IPC proceeded on the basis of dying declaration of the deceased to the effect that â€

“My mother-in-law and husband and sisterin-law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My

husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I

want to die by burning.â€​

Considering legal sustainability of the same the apex Court held as under:

“Abetment has been defined in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a 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.

Neither of the ingredients of abetment are attracted on the statement of the deceased.â€​

From the aforesaid pronouncements of the apex Court, it flows that to constitute abetment to commit suicide, there must be material, prima-facie,

indicating that accused with a positive act on his part instigated, incited, aided or provoked the person to commit suicide.

In Devendra and others vs. State of Uttar Pradesh and another, (2009) 7 SCC 495, it has been held as under:

“when the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an

offence, the superior courts would not encourage harassment of a person in a criminal court for nothing.â€​

In the case of Devendra Singh Vs. State of M.P. 2007(3) M.P.H.T. 247, the co-ordinate Bench of this Court in para 6 held as under:

“6. Now, adverting to the facts of the instant case, the suicide note allegedly left by the deceased indicates that the deceased committed suicide

being fed-up with his life. It also prima facie indicates that the applicant was threatening the deceased for last one month prior to the occurrence in

order to recover his money lent to the deceased. It nowhere indicates that the applicant intended that deceased should commit suicide or instigated him

to commit suicide. The consistent view of this Court as enunciated in various decisions cited above, has been that demand of money or loan does not

amount to an abetment of commission of suicide.â€​

The facts of the case are required to be considered in the light of the aforesaid legal position. As per prosecution, from 30/05/2017 to 08/07/2017,

on the pretext of marriage the applicant put the deceased- Nisha in the house of one Siyaram at Ekta Nagar, Ujjain, where he committed rape upon

the deceased-Nisha. Thereafter, when the applicant refused to marry deceased, then deceased feeling harassed and humiliated committed suicide by

hanging herself. The statement of relatives of the deceased and other prosecution witnesses, did not indicate that at any point of time deceased was

provoked, incited, goaded or persuaded by the present applicant to commit suicide. Therefore, even if all the allegations made against the applicant are

accepted in their entirety, still they not make out a case u/s. 306 read with Section 107 of the IPC.

The learned trial Court while framing the charge has not considered the aforesaid factual and legal aspects of the matter and has mechanically

framed the charge. Therefore, the charge u/s. 306 read with Section 107 of the IPC against the applicant cannot be sustained.

Accordingly, this petition deserves to be and is hereby allowed and the impugned order is hereby set aside and the charge with regard to offence

u/s. 306 read with Section 107 of the IPC against the applicant- Anurag @ Govinda is hereby quashed.

Let a copy of this order be sent to the concerned trial Court for information and necessary compliance.

Certified copy as per rules.