Sitaram Rajak & Others vs State Of M.P.

This revision petition under Section 397/401 of Cr.P.C. has been preferred by the petitioners being aggrieved by the order dated 23.04.2019 in S.T.

No. 173/2018 passed by 4th Additional Sessions Judge, Katni, whereby the learned ASJ has framed the charge for the offence punishable under

Section 306/34 of IPC against the petitioners.

According to the case, on the basis of Marg Intimation report, the police has registered the FIR against the petitioners wherein it is mentioned that

the father of the deceased informed the police that the deceased was his elder son and was in possession of Government land since long back. In the

morning of 17.08.2018, when the deceased was digging pit, the petitioner No. 2 Baijnath came there and restricted him to remove fencing (Tar badi),

he called the police also. Thereafter, the police came and restricted the said work. Thereafter, the deceased made a phone call to police complaining

that the petitioner/Baijnath had beaten him. Thereafter, the deceased disclosed the incident to his family members and went into his room. After half

an hour, wife of the deceased found that the room is locked from inside and the deceased committed suicide by hanging himself.

During the investigation, police found that on 17. 08.2018, the petitioners had beaten the deceased on the dispute of land, due to

which he committed suicide by hanging himself. After completing the investigation, the police has filed the charge-sheet against the petitioners for the

offence under Section 306/34 IPC.

Learned counsel for the petitioners submits that on reading the FIR, no offence is made out against the petitioners. In the present case, there is no

role of petitioners No. 1 and 3 namely Sitram and Jagdish, respectively, as their names are not mentioned in the FIR, later on, on the basis of statement

of witnesses, they have been implicated in the case. He further submits that according to the prosecution, the quarrel alleged to be taken place

between the petitioner No. 2/Baijnath and deceased but the police has filed the charge-sheet against all the petitioners. There is no evidence which

shows that the deceased was instigated or abetted by the accused persons for committing suicide. He further submits that according to the

prosecution, the quarrel took place with respect to possession of land, hence, the deceased should have informed the police or file the civil proceeding.

If the allegations made in the FIR, are taken into consideration in toto, no offence is made out under section 306 IPC against all the petitioners. With

the aforesaid submissions, he prays for allowing this petition.

On the other hand, learned counsel for the respondent/State opposes the petition submitting that there is sufficient material available on record for

framing the charge of the aforesaid offence. The petitioners have abetted the deceased on account of dispute of land. The petitioners had beaten the

deceased due to which he was depressed when he came to his house. He had stated about the quarrel to his family members also. Hence, at this

stage, this revision petition may not be allowed, the petitioners may raise all the grounds before the trial Court at appropriate stage of trial.

Heard all the parties and perused the case-diary. Before embarking on the facts of the case, it would be necessary to consider the legal aspects

first. Since the petitioners have challenged the charge framed by the trial Court, by way of filing this revision petition, therefore, I would prefer to deal

with the provision of Section 227 of Code Of Criminal Procedure, 1973, the same reads as under:

“227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the

accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall

discharge the accused and record his reasons for so doing.â€​

If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure,

1973, comes into role, provision is also quoted as under:

 “228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the

accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial

Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a

police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked

whether he pleads guilty of the offence charged or claims to be tried.â€​

The Hon’ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990 SC

1962) has held as under:-

“7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in

paragraph 18 of the Judgment as under:

The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of

Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which

leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the

accused in respect of the commission of that offence"".

From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a

view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court

may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is

opposed to common sense or the broad probabilities of the case.â€​

Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366, )the Hon’ble Supreme Court again has held

as under:-

“Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence

for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully

justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By

and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not

grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely

as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents

produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into

the pros and cons of the matter and weigh the evidence as if he was conducting a trial.â€​

Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-

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 “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to

produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of

Section 227 of the Code has not been correctly decided.â€​

The Hon’ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 32,2 has also held as

under:-

“4………..It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding

against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for

convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be

quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross

examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground

for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering

the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the

materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily

be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records

for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v.

Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar

Bhunja (1979) 4 SCC 274 and held thus:

“From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record

with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The

court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even

if it is opposed to common sense or the broad probabilities of the case. (emphasis supplied)

Therefore, it is manifest that while framing the charges, the Court is required to evaluate the material and documents on record with a view to find

out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The

accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents

annexed with the charge-sheet.

Now, it is also necessary to read the relevant provisions of IPC, of which charge is framed against the petitioners. The trial Court has framed the

charge of offence under Section 306/34 IPC. Section 306 IPC is reproduced herein under:-

“306. Abetment of suicide.â€"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.â€​

Further the “Abetmentâ€​ is defined under Section 107 of I.P.C. which reads as under :-

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“107. Abetment of a thing.â€"A person abets the doing of a thing, whoâ€

First.â€"Instigates any person to do that thing; or Secondly.â€"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€​

In the case S.S. Chheena Vs. Vijay Kumar Mahajan and another reported in (2010) 12 SCC 190, the Hon'ble Apex Court has held as under:-

“25. 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.â€​

Further, The Supreme Court in the case of Praveen Pradhan vs. State of Uttaranchal, reported in (2012) 9 SCC 734

has held as under :-

“17. 17. 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……..

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.â€​

The Supreme Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police, reported in (2011) 3 SCC 62 6has

held as under :-

“44. 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 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.â€​

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. Instigation requires an active act or direct act which led the deceased to commit suicide seeing no other option and that act

must be done with an intention to push the deceased into such a position that he commit suicide. The offence of abetment by instigation depends upon

the intention of the person who abets the deceased. Instigation has to be gathered from the circumstances of a particular case 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.

In the present case, it seems that there was dispute regarding land and for the same reason, both the parties called the police at different points of

time. According to prosecution, the petitioners had beaten the deceased due to which he committed suicide but on perusal of case diary, the

prosecution has not specified any injury other than ligature mark. It is stated by the deceased's father that the deceased was in possession of

Government land and when he was digging pit, petitioner No.2 Baijnath came and prevented him to do so. In the FIR, no role is ascribed to petitioners

No. 1 and 3. The petitioners No. 1 and 3 came into picture when witnesses Mona Chakrawarti and Raju Bhoomiya have stated against them. Witness

Raju Bhoomiya saw the petitioners beating the deceased whereas Mona Chakrwarti (wife of the deceased) stated that the deceased told her about

such act of the petitioners but Hallu Chakrawarti (father of the deceased) and Mamta Bai (mother of the deceased) have stated that Mona

Chakrawarti told them that deceased was saying that petitioner No. 2 Baijnath had beaten the deceased. Hence, statements of Hallu, Mamta Bai and

Mona are found contradictory to each other. Further, even if it is assumed that the quarrel took place between the petitioners and deceased and the

deceased had been beaten by the petitioners, even then, no intention of the petitioners is found in the case diary which intended to push the deceased

into such a position that he committed suicide specially when the deceased was well aware with the legal remedy and he called the police by dialing

100 prior to the incident. He should have filed the FIR or any civil proceeding against the petitioners. The whole incident occurred in a single day and

no material is found which shows that the petitioners were harassing the deceased for whatsoever reason for a long time. Further, it is found that the

petitioners never suggested or stimulated the deceased by means of language, direct or indirect to instigate him to commit suicide. No material is

available to show that they have uttered any word which pushed the deceased under depression to the extant that he threw his life in such manner.

Hence the petition is allowed and impugned order dated 23. 04.2019 in S.T. No. 173/2018 passed by 4th Additional Sessions Judge, Katni is hereby

quashed. The petitioners are discharged from the offence of Section 306/34 IPC.

C.C. as per rules.