Kamlakar Patil vs State Of Chhattisgarh

Arvind Singh Chandel, J

The instant revision has been preferred against the order dated 27.12.2017 passed by the 2 nd Additional Judge to the Court of 1 st Additional

Sessions Judge, Durg in Sessions Trial No.62 of 2017, whereby a charge under Section 306 of the Indian Penal Code has been framed against the

Applicant.

The allegations against the Applicant are that on 12.9.2004 at about 3:15 PM deceased Premlal Dewangan committed suicide by consuming

poisonous substance. On the basis of a memorandum received from the hospital, a morgue was recorded. During the course of inquiry, on 13.9.2004,

an unsigned suicidal note/dying declaration, allegedly written by the deceased, was seized from his brother Murari Dewangan. In the said suicidal note,

it is mentioned that the Applicant had been lending him money on an interest of 10% per day for playing gambling and the Applicant had made demand

of his money and now he is not in a condition to maintain his family and, therefore, he committed suicide. Statements of witnesses were recorded

under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge- sheet was filed against the Applicant for an

offence punishable under Section 306 of the Indian Penal Code. Vide the impugned order dated 27.12.2017, the charge under Section 306 of the

Indian Penal Code has been framed against the Applicant. Hence, this revision.

Learned Counsel appearing for the Applicant submitted that in the entire charge-sheet there is no material available to frame charge against the

Applicant for the alleged offence punishable under Section 306 of the Indian Penal Code and as such the Learned Additional Sessions Judge has

committed manifest illegality in framing the charge against the Applicant. There is no proximity and nexus between the conduct and behaviour of the

Applicant with that of the suicide committed by the deceased. He further submitted that even if the evidence on record is taken as it is, the only thing

that is established is that the Applicant had borrowed money to the deceased due to which financial condition of the deceased had become poor and as

a result of which the deceased committed suicide for which the Applicant cannot be held guilty.

On the other hand, Learned Counsel appearing for the State submitted that there is sufficient material available on record for presuming that the

Applicant has committed the offence and as such there is no illegality in the order impugned framing charge against the Applicant warranting

interference by this Court.

I have heard Learned Counsel appearing for the parties and perused the order impugned including the material available carefully.

The question in the present case is whether on considering the entire available material to be correct a prima facie case for alleged commission of

offence under Section 306 of the Indian Penal Code is made out against the Applicant or not?

At this juncture, it is appropriate to look into the provisions of Sections 306 and 107 of the Indian Penal Code, which run thus:

Abetment of suicide.-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.

Abetment of a thing.-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 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 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.

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 facilitate the commission thereof, is said to aid the doing of that act.

Section 109 of the Indian Penal Code provides for punishment for abetment, which runs as follows:

Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.-- 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.

As per the definition given in Section 107 of the Indian Penal Code, an abetment is constituted by any one of the following three ingredients:

(i) instigating a person for doing of a thing, or

(ii) engaging in a conspiracy for the doing of that thing, or

(iii) intentionally aiding the doing of that thing.

A person is said to ""instigate"" another to an act, when he actively suggests or stimulates him to the act by any 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, urge forward, provoke,

incite or encourage to do an act.

As Section 306 of the Indian Penal Code makes abetment of commission of suicide punishable, therefore, for making liable for an offence

punishable under Section 306 of the Indian Penal Code, it is the duty of the prosecution to establish that such person has abetted 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 in any of the three ingredients as

enumerated under Section 107 of the Indian Penal Code and, therefore, it is necessary to prove that the said accused has instigated the person to

commit suicide or must have engaged with one or more persons in any conspiracy for seeking that the deceased commits suicide or he must

intentionally aid by any act or illegal commission of the suicide by the deceased.

In (2001) 9 SCC 618 (Ramesh Kumar v. State of Chhattisgarh), it has been observed by the Supreme Court as under:

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.

In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, 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 her 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.

Further, it has been observed by the Supreme Court in AIR 2010 SC 327 (Gangula Mohan Reddy v. State of Andhra Pradesh) 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 this act must have been intended to push the deceased into such a position that he committed suicide.

In (2011) 3 SCC 626 (M. Mohan v. State Represented By The Deputy Superintendent of Police, )the Supreme Court, by the following

observation, has clearly held that in order to convict a person under Section 306 of the Indian Penal Codd there has to be a clear mens rea to commit

the offence:

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.

In 1995 (3) Supp SCC 731 (Mahendra Singh v. State of M.P.) ,the Appellant was charged of an offence under Section 306 of the Indian Penal

Code basically based upon the dying declaration of the deceased, which reads as under:

My motherÂ​inÂ​law and husband and sisterÂ​inÂ​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 sisterÂin law. Because of those reasons and being harassed I want to die by

burning.

Their Lordships of the Supreme Court, considering the definition of 'abetment' given in Section 107 of the Indian Penal Code, found that the charge

and conviction of the Appellant for an offence under Section 306 of the Indian Penal Code was not sustainable merely on the allegation of harassment

to the deceased. It is further held that none of the three ingredients of abetment are attracted on the statement of the deceased.

In 2015 AIR SCW 4814 (State of Kerala v. S. Unnikrishnan Nair), the Supreme Court has observed as under:

As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the

allegations and for proper appreciation of the same, we have reproduced it hereinbefore. On a plain reading of the same, it is difficult to hold that there

has been any abetment by the respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put him

in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the

allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed

complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by

the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on

him. He has also made the allegation against the Advocate.

Coming to the case at hand, as we have stated earlier, the suicide note really does not state about any continuous conduct of harassment and, in

any case, the facts and circumstances are quite different. In such a situation, we are disposed to think that the High Court is justified in quashing the

proceeding, for it is an accepted position in law that where no prima facie case is made out against the accused, then the High Court is obliged in law

to exercise the jurisdiction under Section 482 of the Code and quash the proceedings. [See V.P. Shrivastava v. Indian Explosives Limited and others,

(2010) 10 SCC 361]

In the light of aforesaid enunciation of law, the facts of the present case are to be examined.

It is the case of the prosecution that the deceased committed suicide by consuming some poisonous substance. It is the further case of the

prosecution that the Applicant had been lending money to the deceased on 10% interest per day and the deceased had been playing gambling with that

money. The Applicant used to pressurise to get his money back and he had realised his money from the deceased due to which financial condition of

the deceased had become poor. During the course of inquiry, an unsigned suicidal note/dying declaration, allegedly written by the deceased, was

seized from his brother Murari Dewangan on 13.9.2004, which reads as under:

11-9-04 11.9.04

( )

10%

From perusal of the suicidal note/dying declaration of the deceased, it is clear that there is only allegation against the Applicant in the said suicidal

note/dying declaration that the deceased committed suicide due to his poor financial condition. As written by him, he had borrowed money from the

Applicant and the Applicant had realised his money from him and as a result of which his financial condition had become poor. It is not mentioned in

the suicidal note that on which dates, at which places and how much money the deceased had borrowed from the Applicant and when did he refund

the money to the Applicant is also not mentioned in the said suicidal note. Kamal Yadav and Itwari, in their statements recorded under Section 161 of

the Code of Criminal Procedure, have only stated that few days before the Applicant had come to the deceased and had asked him that when he had

taken money from him why is he not refunding the same to him and if he is unable to refund his money, he should hang himself. From the above, it is

established that the Applicant had pressurised the deceased only for taking his money back and that too this had taken place many days before the

date of incident. From the material available, it is also established that on 30.8.2004, i.e., about 12 days prior to the date of incident, the deceased had

closed his account opened in the post office and thereby withdrawn his money of Rs.42,385/-. But, there is nothing on record to show that he had

given this money to the Applicant. Even if it is accepted that he had given this money to the Applicant, it is established that he had refunded money to

the Applicant which he had taken from him as loan. There is nothing on record to establish that the Applicant had been continuously torturing and

harassing the deceased physically or mentally. Any of the ingredients of Section 107 of the Indian Penal Code, as mentioned above, does not

constitute the offence alleged against the Applicant.

In the opinion of this Court, on considering the entire available material to be correct, no prima facie case for framing of charge against the

Applicant for offence punishable under Section 306 of the Indian Penal Code is made out as there is no nexus or proximity with the conduct and

behaviour of the Applicant with that of the suicide committed by the deceased.

Consequently, the revision is allowed. The impugned order dated 27.12.2017 framing charge against the Applicant under Section 306 of the Indian

Penal Code is set aside and the Applicant is accordingly discharged.