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Judgment
This application under Section 482 of Cr.P.C. has been filed challenging the charge sheet as well as proceedings of Criminal Case No.2838 of
2017 pending in the Court of C.J.M., Gwalior under Section 306 of I.P.C.
The necessary facts for the disposal of the present application in short are that the applicants are father and son and the deceased was employee
in their shop.
According to the prosecution case, on 30-1-2017, at about 7:46 A.M., the complainant Bharat Singh Rawat, the brother of the deceased
Sughar Singh, informed the police that his brother Sughar Singh has committed suicide by hanging himself. The police started inquest enquiry and
after holding the enquiry, registered the F.I.R. for offence under Section 306 of I.P.C. on the allegation that the deceased Sughar Singh was
working as an employee in the shop of the applicants and they had leveled an allegation that the deceased has stolen Rs. 240/-. The deceased was
upset because of the allegation and after leaving a suicide note to the effect the allegations of committing theft of Rs.300/- have been levelled
against him and he is in love with one girl who has ditched him, he committed suicide by hanging.
The Police after completing the investigation, has filed the charge sheet against the applicants for offence under Section 306 of I.P.C.
Challenging the F.I.R. as well as the charge sheet filed by the police, it is submitted by the Counsel for the applicants that the only allegations
against the applicants is, that the deceased was working in their shop and the applicants have alleged that he has committed theft of Rs. 300/240. If
the entire allegations are accepted, even then, no offence under Section 306 of I.P.C. would be made out. It appears that the deceased was of a
hypersensitive nature and he felt insulted because of an allegation of theft. It cannot be said that the applicants in any manner instigated or abetted
or created such a situation, where the deceased was left with no other option, but to put an end to his life.
Per contra, it is submitted by the State Counsel as well as the counsel for the complainant, that the deceased was the employee of the applicants
and by making an allegation of committing theft of Rs.300/240, they created such a situation, where the deceased was left with no other option, but
to commit suicide, therefore, the allegations made against the applicants, prima facie make out an offence punishable under Section 306 of I.P.C.
and, therefore, the prosecution may not be quashed.
Heard the learned Counsel of the parties.
The centripetal question for determination is that even if the entire allegations are accepted as they are, then whether can it be said that the
applicants have committed an offence of abetment of suicide.
Section 306 of I.P.C. reads as under :-
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"" is defined under Section 107 of I.P.C. which reads as under :-
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.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully
represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
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.
The Supreme Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605, while dealing
with the term ""instigation"", held as under :-
16................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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to
actually follow, cannot be said to be instigation.
Thus, to constitute ''instigation'', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by
''goading'' or ''urging forward''. The dictionary meaning of the word ''goad'' is ''a thing that stimulates someone into action; provoke to action or
reaction'' ... to keep irritating or annoying somebody until he reacts....
The Supreme Court in the case of Praveen Pradhan vs. State of Uttaranchal reported in (2012) 9 SCC 734 held as under :-
The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person
who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words
uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh ((1991) 3 SCC 1),
Surender v. State of Haryana ((2006) 12 SCC 375, Kishori Lal v. State of M.P.( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti
Sree ((2009) 1 SCC 554)
In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket
formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a
particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an
inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the
situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a
court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC.
The Supreme Court in the case of Sanju @ Sanjay Singh Sengar vs. State of M.P. reported in (2002) 5 SCC 371 has held as under :-
Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he firstly, 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.
Further, in para 12 of the judgment, it is held as under:
The word ""instigate"" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea,
therefore, is the necessary concomitant of instigation.
The Supreme Court in the case of Gangula Mohan Reddy vs. State of A.P. reported in (2010) I SCC 750 needs mentioned here. In which
Hon''ble Apex Court has held that:
abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing - Without a positive act on part of
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 offence - It also requires an active act or direct act which leads deceased to commit suicide seeing no option and
this act must have been intended to push deceased into such a position that he commits suicide - Also, reiterated, if it appears to Court that a
victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which
victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to
commit suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty-
Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under
Section 306 made out - Hence, appellant''s conviction, held unsustainable"".
In the case of State of W.B. vs. Orilal Jaiswal, reported in 1994 (1) SCC 73 , the 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 appears 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 that
accused charged of abetting the offence of suicide should be found guilty.
The Supreme Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238
has held 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. The intention of the Legislature 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/she committed suicide.
The Supreme Court in the case of Kishori Lal vs. State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:-
Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the
doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing
of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime.
The word ""instigate"" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation,
conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in
consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment
provided for the original offence. ""Abetted"" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a
person is charged with the abetment is normally linked with the proved offence.
In the case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme Court has held as under:-
Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must
scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the
cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind
that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the
allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or
compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the
person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to
facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by
the prosecution before he could be convicted under Section 306 IPC.
The expression ''abetment'' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the
commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly
or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the
offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated
before us that it would be a case where clause ''thirdly'' of Section 107 IPC only would be attracted. According to him, a case of abetment of
suicide is made out as provided for under Section 107 IPC.
In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to
have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further
gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows:
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.
Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more
particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case
within the purview of Section 306 IPC.
The Supreme Court in the case of Amit Kapur vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :
''''35.The learned counsel appearing for the appellant has relied upon the judgment of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT
of Delhi) ((2009) 16 SCC 605 to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the
accused. It is not the stage for us to consider or evaluate or marshal the records for the purposes of determining whether the offence under these
provisions has been committed or not. It is a tentative view that the Court forms on the basis of record and documents annexed therewith. No
doubt that the word ""instigate"" used in Section 107 IPC has been explained by this Court in Ramesh Kumar v. State of Chhattisgarh ((2001) 9
SCC 618) to say that where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the
deceased was left with no other option except to commit suicide, an instigation may have to be inferred. In other words, instigation has to be
gathered from the circumstances of the case. All cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide.
There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue
existence. ''''
Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language,
direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act.
If the allegations made against the applicants are considered, then the only allegation against them is that the deceased was working as an
employee in their shop and the applicants had alleged that he has stolen Rs. 300/240. It appears that the deceased felt insulted or was hurt because
of the allegations of theft. Even if the entire allegations are accepted, it cannot be inferred that the applicants had in any manner instigated or
abetted the deceased to commit suicide. It appears that because of the allegations of committing theft, the deceased must have felt insulted. It
appears that the deceased was of hyper sensitive in nature. Instead of facing a small and meaningless situation, he adopted the path of putting his
life to an end. It is unfortunate that because of some unfortunate incident which took place, the deceased could not tolerate his insult, but it cannot
be said that the applicants in any manner had abetted or instigated the deceased to commit suicide.
Accordingly, the F.I.R. in Crime No.213 of 2017 registered by Police Station Janakganj, District Gwalior, as well as the charge sheet and the
further proceedings in Criminal Case No.2838/2017 pending in the Court of C.J.M., Gwalior are hereby quashed.
The application succeeds and is hereby allowed.