Mohammad Nayan Choudhary vs State of M.P.

This petition preferred under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973 (for short ''the Code'') is directed against order dated 02.12.2016 passed by 1 st Additional Sessions Judge, Dhar in S.T. No.1300252/2016, whereby the charge under Section 306 of IPC has been framed against the appellant for abetting Sudhir Jain to commit suicide.

As per prosecution, Sudhir Jain, who was employed in Neo Corp Company, Pithampur, Distt. Dhar and was residing at Vaishnav Colony, Sector-1, Pithampur committed suicide on 14.06.2016 by hanging from the ceiling of his room. On information being received at Police Station - Sector-1, Pithampur, a "Merg" was registered in this regard. During enquiry, a suicide note was recovered, wherein the deceased has alleged that two persons namely, Satyendra Yadav and Sandeep Kumawat are responsible for his death because they were not releasing his payment for a period of one month fifteen days. In further enquiry, it was revealed that Sudhir Jain was working as Helper since last 1 & ? years in Neo Corp Company, Pithampur. It was further found that the attendance card of Sudhir Jain was concealed by petitioners Satyendra Yadav and Sandeep Kumawat and that he used to complain to the other employees of the company that he is being harassed by Satyendra Yadav and Sandeep Kumawat.

On the basis of result of the inquest proceedings, Crime No.239/2016 came to be registered against petitioners Satyendra Yadav and Sandeep Kumawat at Police Station -Sector-I, Pithampur and a case under Section 306 / 34 of IPC was registered against them. After usual investigation, a charge-sheet has been laid before the Court of Competent Magistrate who in usual course committed to the Court of Sessions. The learned trial Judge, vide the impugned order has framed a charge under Section 306 of IPC against the petitioner.

Challenging the impugned order, it is submitted by the learned counsel for the petitioners that the petitioners have never instigated, provoked, suggested, incited or encouraged the deceased to commit suicide. It is further submitted that the allegations with regard to alleged harassment are false and concocted, however, even if such allegations are accepted as such still a case for abetment to commit suicide is not made out against the petitioner.

Per contra, it is contended by the learned Public Prosecutor that in the suicide note left by the deceased, the name of the petitioners is clearly reflected and, therefore, he is prima- facie responsible for abetting the deceased to commit suicide.

In this regard, we can usefully refer to the decision rendered by this Court in the case of Bittu @ Girriraj vs. State of M.P. (M.Cr.C. No.1742/2016, 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 :- "107. 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 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 "instigate" 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): "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 self-respect, 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 Andhra Pradesh, 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 sustained".

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."

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 - "My mother-in-law and husband and sister-in- 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." 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."

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."

In the light of the aforesaid law enunciated by the apex Court and this Court, it is clear that harassment simpliciter cannot amount to abetment to commit suicide and that to constitute abetment, there must be material clearly indicating that the accused did commit positive act to instigate, incite, aid or provoke the person to commit suicide and that such a result was very much anticipated by the accused. Viewed from the aforesaid angle in the instant case, it cannot be said that the accused at any time directly or indirectly instigated, incited, aided, provoked or goaded the deceased so that he may commit suicide. The learned trial Court while framing the charge has not considered the aforesaid factual and legal aspects of the case, therefore, the impugned order

framing charge against the petitioner for offence under Section 306 of IPC cannot be sustained.

Resultantly, this petition is hereby allowed and the petitioners are discharged with regard to offence under Section 306 of IPC.