Bapulal And Another vs State Of Madhya Pradesh

The present revision has been filed against framing of charges by the trial Court in S.T.No. 97/2017 vide order dated 5/1/2018.

Facts of the case reveal that a crime was registered for an offence u/S. 306 of the Indian Penal Code and after investigation charge sheet has been

filed in the matter. Now, in S.T.No. 97/2017 charge has been framed u/S. 306/34 of the Indian Penal Code. The present revision has been filed u/S.

397 / 401 of the Code of Criminal Procedure, 1973 by the father and mother of the husband of the deceased.

Learned counsel for the petitioner has argued before this Court that by no stretch of imagination, ingredients of Sec. 107 and 306 of the Indian Penal

Code are fulfilled and there is no evidence on record and no dying declaration and merely based upon the omnibus statement made by the mother of

the deceased, crime has been registered against the applicants.

Learned counsel for the petitioner has placed reliance upon the judgment delivered by the apex Court in the case of Sanju @ Sanjay Singh Sengar Vs.

State of M.P. reported in (AIR 2002 SC 1998). Reliance has also been placed by the learned counsel for the petitioner upon the judgment delivered by

the apex Court in the case of S. S. Cheena Vs. Vijay Kumar Mahajan reported in 2011 (1) GLH 542. Reliance has also been placed upon the

judgment delivered by this Court in the case of Chandmal Dandwani Vs. State of M.P. (M.CR.C.No. 1706/2017, decided on 7/3/2017); Omprakash

Agrawal Vs. State of M.P. (M.CR.C.No. 13075/2016, decided on 20/1/2017); and lastly in the case of Mahadev Puri Vs. State of M.P. (Cr. Rev.

No. 1096/2017, decided on 4/4/2018).

It has also been argued that unless and until there is some clinching evidence available on record that the harassment was of such an extent that it can

force the deceased to commit suicide, no charge is made out u/S. 306 of the Indian Penal Code.

This Court, in the case of Mahadev Puri (supra), again wherein the alleged suicide took place after 18 years of marriage like in the present case, in

paragraph 4 to 17 has held as under :

Learned counsel for the petitioner has submitted that the trial Court has committed an error in holding that prima-facie, case against the petitioner

for framing charges under Section 306 of the IPC. He also submitted that neither any suicide note left by the deceased nor any dying declaration given

by her when she hospitalized for a day before her death. He further submitted that there is no material available on record, which indicates the

intention or acts of the petitioner to stress the deceased to commit suicide. Merely on the allegation that the deceased was being physically and

mentally harassed by the petitioner does not attract the provisions of Section 306 of IPC unless and until there is clinching evidence available on record

that the harassment was of such an extent that can force the deceased to commit suicide. Only because the petitioner had harassed the deceased, it

cannot be said that he instigated her to commit suicide. Since no ingredient of abatement is borne out from the facts of the prosecution case, learned

trial Court committed error in framing charge under Section 306 of the IPC .

Learned Public Prosecutor for the State, on the other hand, has submitted that the deceased had committed suicide because the petitioner to stress

the deceased, due to which, she committed suicide. Since the deceased had committed suicide due to the conduct of the petitioner, the trial Court did

not commit any error in framing charges under Section 306 of the IPC.

I have considered the facts of the case and rival contentions of the parties.

The question in the present revision as to whether considering and accepting the entire material available on record, is absolutely true, prima-facie

case and commission of offence punishable under Section 306 of the IPC would be made out against the petitioner?

Before adverting to the contentions raised by the parties, it is appropriate to observe factual background in which the entire incident in question has

taken place. The petitioner physically and mentally harassed her frequently, due to which she committed suicide.

The aforesaid facts failed to satisfy the ingredients of Section 306 of the IPC because the reason to commit suicide and abetement to commit

suicide cannot be equated and for the purpose of Section 306 of the IPC it can be used simultaneously or interchangeably. The fact that the deceased

committed suicide, due to frequent harassment by the petitioner, which is not enough to prosecute a person for offence under Section 306 of IPC

unless the ingredients of Section 107 of the IPC is to be satisfied, which are reproduced as under :-

“107. Abetement of a thing â€" A person abets the doing of a thing, who -

First â€" 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 â€" Intentionally aids, by any act or illegal omission, the doing of that thing.â€​

A person is said to be instigated another to an act, when he actively or stimulates him to the act by means of language, direct or indirect, whether it

takes the form of express solicitation, or of hints, insinuation or encouragement. The word 'instigate' means to goad or urge forward or to provoke,

incite, urge or encourage to do an act.

On examination of the facts and circumstances of the present case, as they are, it appears that the accused never goaded or urged forward,

provoked, incited or urged or encouraged the deceased to commit suicide. The petitioner never intended that the deceased should commit suicide.

Learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of S.S. Cheena vs. Vijay Kumar

Mahajan & another, reported in 2010 (12) SCC 190, the allegations levelled were as under:

“An enquiry was conducted by the Security Officer of the University, the appellant herein, regarding the theft of a mobile phone. A dispute arose

between the deceased and H. The deceased committed suicide during the course of enquiry, by jumping in from of a train, leaving a suicide note. In

the suicide note it is stated that he did not commit the theft and he had committed suicide because he was falsely implicated in the theft case of a

mobile phone.â€​

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. When the appellant was in no manner connected with this case and there was no credible material to

connect the appellant with the crime, it would be a futile exercise to compel him to undergo a criminal trial.

In the case of State of West Bengal vs. Orilal Jaiswal: reported in 1994 (1) SCC 73, Hon'ble Supreme Court has held as under:

This Court has 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

transpires 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.

In the case of Gangula Mohan Reddy vs. State of A.P: reported in (2010) 1 SCC 750, whereby Hon'ble Supreme Court has held thus:

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 - 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 commits suicide. - Also, reiterated, if it appears to the Court that a

victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the

victim belonged and such petulance, discord and 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 of abetting the offence of suicide

should be found guilty. - Herein, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord circumstances of case, none of the

ingredients of offence under Section 306 made out â€" Hence, appellant's conviction, held unsustainable."" Â

The Hon'ble Supreme Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC

1238 has observed thus:-

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/she commits suicide.

Looking to the facts of the case, it is found that the alleged harassment may be caused for committing suicide, but would not amount to abetment

to commit the same as defined in Section 107 of IPC and in the facts and circumstances of the present case, there is no evidence with regard to

provocation, incitement or encouragement for commitment of suicide by the deceased. Therefore, the trial Court has committed error in framing

charge against the present petitioner for an offence punishable under Section 306 of the IPC.

Taking this view of the matter, the present revision petition is allowed. The impugned order of the trial Court is hereby set aside and the petitioner

Mahadev is discharged from the commission of offence under Section 306 of the IPC.

It is true that there was some incident earlier in the past also, but it is ten years old which reflects that there was a dispute between the husband and

wife, but there is no clinching evidence to establish that the deceased was harassed by the presents applicants who are parents of the husband of the

deceased which forced the deceased to commit suicide.

This Court is of the considered opinion that the alleged harassment would not amount to abetment to commit suicide as defined u/S. 107 read with

Sec. 306 of the Indian Penal Code and there is no clinching evidence with regard to provocation, incitement or encouragement for commitment of

suicide by the deceased and therefore, the Court below has erred in law in framing charges against the present applicants u/S. 306 of the Indian Penal

Code.

Accordingly, the present revision stands allowed. The impugned order of the trial Court framing charges against the present applicants is set aside and

both the petitioners are discharged from commission of offence u/S. 306 of the Indian Penal Code.