Shweta Sharma vs State of Jharkhand

Rongon Mukhopadhyay, J.—Heard learned counsel for the petitioner and learned counsel for the State.

In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Sadar P.S. Case No. 39 of 2004 corresponding to G.R. Case No. 217 of 2004, including the order dated 30.07.2004, passed by the learned Chief Judicial Magistrate, Chaibasa, whereby and whereunder cognizance has been taken for the offence punishable under Section 306 of the Indian Penal Code.

An F.I.R. was instituted on the fardbeyan of Bijay Kumar Paul, in which it was stated that the accused-petitioner called the informant in the compound of Lutheran Middle School and when the informant reached there, he found the accused standing there and on seeing the informant, she said that she is not going to marry him at any cost. It has been alleged that thereafter the informant brought some kerosene oil and set himself on fire in the school compound itself. Subsequently, he was brought to Sadar Hospital by his brother Ajay Paul for treatment. The informant had further disclosed that for the last five years, there was a love affair between the informant and the accused petitioner and the petitioner used to assure the informant that she would marry him. It has been stated thereafter by the informant that nobody is responsible for the incident.

Based on the aforesaid fardbeyan of the informant, Sadar P.S. Case No. 39 of 2004 corresponding to G.R. Case No. 217 of 2004 was instituted for the offence punishable under section 309 of the Indian Penal Code but after the death of the informant, section 306 of the Indian Penal Code was added and the petitioner was made an accused. After investigation having found the case to be true, chargesheet was submitted by the police against the petitioner, pursuant to which vide order dated 30.07.2004, cognizance was taken by learned Chief Judicial Magistrate, Chaibasa for the offence punishable under section 306 of the Indian Penal Code.

It has been submitted by the learned senior counsel for the petitioner that petitioner cannot be made responsible for abetment to commit suicide because none of the ingredients constituting abetment as envisaged in section 107 of the Indian Penal Code is present. It has further been submitted that merely because the petitioner had refused to marry the informant/deceased, it cannot be construed to mean that the petitioner had abetted the commission of suicide by the informant. It has also been submitted that date of birth of the petitioner is 30.09.1986 and if the allegations made in the F.I.R. are taken to be true, it is the informant who is the person responsible for trying to entice away a minor. Learned senior counsel for the petitioner has referred to the case of Madan Mohan Singh Vs. State of Gujarat and Another, .

Learned counsel for the State on the other hand has submitted that the fardbeyan given by the informant was infact a dying declaration, in which it has been specifically stated that on refusal by the petitioner to solemnize the marriage with the informant, the informant was forced to commit suicide and in such circumstances, it can be said that it is the petitioner, who had abetted the commission of suicide by the informant.

After hearing learned counsel for the parties and after going through the records, I find that the fardbeyan reveals that on being refused by the petitioner to solemnize the marriage with the informant, a drastic step for ending his life was taken by the informant which subsequently resulted in his death.

Section 306 of the Indian Penal Code, which relates to punishment for abetment of suicide, reads as follows:-

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. 9. Abetment has been defined in Section 107 of the Indian Penal Code and the same reads as follows:-

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 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.

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z.B. knowing that fact and also that C is not Z, willfully 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 facilitate the commission thereof, is said to aid the doing of that act.

The basic ingredient in order to constitute abetment, it must be shown that the abettor has intentional aided the commission of the crime. Refusal to marry may accrue different circumstances and mere refusal would not constitute an abetment within the definition as envisaged in section 107 of the Indian Penal Code. It has to be shown that there is a deliberate intention on the part of the abettor to lead a person to commit suicide. The facts, as has been narrated by the informant/deceased, merely suggest that the informant was called to the school compound by the petitioner and on his coming the petitioner disclosed that she will not marry the informant. This action on the part of the petitioner cannot be presumed as having abetted the informant to commit suicide.

In the case of Madan Mohan Singh (supra), it was held as follows:-

"9. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306 IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of West Bengal, , this Court had quashed the proceedings initiated against the accused." Therefore, on a plain reading of Section 306 of the Indian Penal Code, Section 107 of the Indian Penal Code and the judicial pronouncement, as has been indicated above, would only lead to a conclusion that mere refusal by the petitioner to marry the informant in no circumstances could come within the definition of abetment and the automatic fall out of the same would mean that the petitioner cannot be prosecuted for the offence punishable under section 306 of the Indian Penal Code.

Having merit in this application, the same is allowed. The entire criminal proceeding in connection with Sadar P.S. Case No. 39 of 2004 corresponding to G.R. Case No. 217 of 2004, including the order dated 30.07.2004, passed by the learned Chief Judicial Magistrate, Chaibasa, whereby and whereunder cognizance has been taken for the offence punishable under Section 306 of the Indian Penal Code, is ordered to be quashed.