[PRECEDENT] HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR (SB: Hon'ble Shri Justice [ENTITY]) [CASE NUMBER]. [PRECEDENT]. Shri [ENTITY], learned counsel for the petitioner. Shri [ENTITY], Learned Government Advocate for the State. Ms. [ENTITY], learned counsel for respondent no. 2.
Whether approved for reporting:
Law laid down:
Significant paragraphs:
-O R D E R-
(26/06/2019) Petitioner-accused has filed this criminal revision under [SECTION] read with [SECTION] of [ACT] to set-aside the impugned order dated 02/07/2018 passed by Second Additional Session Judge Sagar in [CASE NUMBER] whereby learned Second Additional Session Judge, Sagar framed charges for the offence punishable under [SECTION] of [ACT].
2. The facts of the prosecution case are that the marriage of petitioner-accused was solemnized on 18/04/2012 with the deceased [ENTITY]. Deceased [ENTITY] ended his live on 27/03/2013 by hanging himself in his house. Thereafter brother of deceased [ENTITY] filed a complaint against the petitioner-
[PRECEDENT] accused and others. It is mentioned in that complaint that marriage of deceased [ENTITY] was solemnized with petitioner-accused on 18/04/2012 thereafter, petitioner-accused lived at matrimonial house with deceased [ENTITY] and other family members.
Petitioner-accused humiliated and tortured deceased [ENTITY] and petitioner-accused told deceased [ENTITY] that her marriage solemnized with him without her wish. She did not like deceased [ENTITY]. Petitioner-accused did not do domestic work. She did not provide food to the deceased [ENTITY].
She also alleged character trait. Thereafter she went to her parental house with her ornament. Deceased [ENTITY] went to her parental house to take her back but petitioner-accused refused and abused deceased [ENTITY]. She told that she wants divorce otherwise deceased [ENTITY] and his family members shall be falsely implicated in the case and she want marriage with another person due to this thing, deceased was in depression, thereafter, deceased filed divorce petition on 23/03/2013 before Civil Judge Senior Division, Lalitpur (U.P.) and deceased [ENTITY] was in depression. At that time he telephoned to the petitioner-accused, the petitioner-accused told him to go and die. Thereafter, deceased [ENTITY] came to his house and committed suicide by hanging himself. Learned trial Judge inquired the matter and held there is praima facie material against the petitioner accused, so he took cognizance against the petitioner-accused under [SECTION] of [ACT] thereafter, learned trial judge framed charges against the [PRECEDENT] petitioner-accused under [SECTION] of [ACT].
3. Learned counsel for the petitioner accused submits that after marriage petitioner-accused was compelled to live in her matrimonial home, then facts have been narrated in the complaint are nothing but a bundle of falsehood but the court below has erred in law and also on facts and acted with a material irregularity while framing charges under [SECTION] of [ACT]. The impugned order is perverse and based on no evidence. Petitioner-accused cannot be held liable for any irresponsible steps taken by the deceased. Petitioner-accused resided at her marital home and was being forced to leave her husband due to the latter's disturbing and dangerous behaviour. He further submits that complaint itself shows that the same has been drafted by a skilled person who has expertise in filling such concocted cases and in a very cunning manner made an attempt to abuse the provisions of law.
Averments in the complaint do not disclose the ingredients of [SECTION] of [ACT]. The Trial Court ignored that the deceased was under
psychiatric treatment and was suffering from depression due to the divorce proceedings with the petitioner-accused. The deceased committed an Anomic and Egoistic suicide due to the failure of self and inability to cope up with the rejection. The trial court has ignored that the family members of the deceased are unnecessarily blaming the petitioner-accused for the death of their family member.
Petitioner-accused has no role to play in the death of the deceased. It is evident from the record that the deceased filed divorce petition against petitioner-accused, so it cannot be said that the petitioner-
[PRECEDENT] accused wanted to take divorce from deceased [ENTITY] but the deceased was a patient of depression and had other serious behavioural issues which limited him to lead a normal life. On various occasions he abused and assaulted the petitioner-accused. She was threatened with dire consequences, following which she was compelled to flee to her maternal home without even her basic belongings. The deceased was habitual drinker and had absolutely no friend circle which further worsened his psychological state. When the petitioner-accused reasoned with him and her in-laws, she was snubbed and was asked to adjust with deceased [ENTITY], so it is prayed that the impugned order be set-aside.
4. Learned counsel for the respondent-State opposed the averments made by learned counsel for the petitioner-accused and supported the impugned order.
5. Heard both the parties and perused the record.
6. It is evident from the record that learned trial judge framed the charges against the petitioner-accused under [SECTION] of [ACT], so it must be seen that what is the evidence against the petitioner-accused.
[SECTION] of [ACT] 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.
[SECTION] of [ACT] reads as under:
[SECTION]. Framing of charge.(1) If, after such consideration [PRECEDENT] 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.
Hon'ble Supreme Court in the case of [PRECEDENT] has held as under:-
7. Again in [PRECEDENT] 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 other-
wise, is not exactly to be applied at the stage of [SECTION] or [SECTION] of the [ACT]. At this stage, even a very strong suspicion rounded 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 [SECTION] 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."
Hon'ble Supreme Court again in the case of [PRECEDENT] 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] 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] 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.
It is evident from the above case law that there must be prima-
facie material available, on which charge can be framed.
7. It is evident from the record that petitioner-accused is wife of deceased [ENTITY]. After marriage petitioner-accused lived sometimes with deceased [ENTITY] and his family members.
About three months from the date of the incident petitioner-accused was living in her parental home. It is admitted that there is dispute [PRECEDENT] between the petitioner-accused and her husband deceased [ENTITY] and deceased [ENTITY] filed a divorce petition three days before the incident. Allegation against the petitioner-
accused is that she tortured and humiliated the deceased [ENTITY]. She left his house without any reasonable cause. She told deceased [ENTITY] to go and die. So deceased [ENTITY] ended his life by hanging due to behaivour of his wife.
Petitioner-accused accused submits that deceased [ENTITY] was in depression condition, so he committed suicide. The Hon'ble Apex Court dealt with the similar issue in the case of [PRECEDENT].
"36. We would like to deal with the concept of 'abetment'. [SECTION] of the Code deals with 'abetment of suicide' which reads as under:
"306. 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 extent to ten years, and shall also be liable to fine."
37. The word 'suicide' in itself is nowhere defined in the [ACT], however, its meaning and import is well known and requires no explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
38. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under [SECTION] of [ACT]
39. Abetment of a thing' has been defined under [SECTION] of the Code. We deem it appropriate to [PRECEDENT] reproduce [SECTION], which reads 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing. Explanation 2 which has been inserted along with [SECTION] reads as under:
"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."
40. The Learned counsel also placed reliance on yet another judgment of this court in [ENTITY] v. State of Chhattisgarh (2001) 9 SCC 618, in which a three- Judge Bench of this court had an occasion to deal with the case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant [ENTITY] committed suicide.
41.This Court in SCC para 20 of [ENTITY] (2001) 9 SCC 618: 2002 SCC(Cri) 1088 has examined different shades of the meaning of "instigation'.
Para 20 reads as under:(SCC p. 629) "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 [PRECEDENT] follow cannot be said to be instigation."
In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by [ENTITY] (appellant's wife therein) may necessarily be drawn.
42. In [PRECEDENT], this Court has cautioned that (SCC p. 90, para
17), 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 difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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.
43. This court in [PRECEDENT], had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
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.
45. 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] [ACT] 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 [PRECEDENT] intended to push the deceased into such a position that he/she committed suicide."
8. The Hon'ble Apex Court dealt with the similar issue in the case of of [PRECEDENT] also is as under:
"8. In [PRECEDENT], the appellant was charged for an offence under [SECTION] [ACT] on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die' . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.
9. In [ENTITY] Singh v. State of M.P ., 1995 Supp.(3) SCC 731: 1995 SCC (Cri) 1157, the appellant was charged for an offence under [SECTION] [ACT] basically based upon the dying declaration of the deceased, which reads as under:
(SCC p. 731, para 1) "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 [ENTITY] 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."
10. This Court, considering the definition of 'abetment' under [SECTION] [ACT], found that the charge and conviction of the appellant for an offence under [SECTION] is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
11. In [ENTITY] V. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under [SECTION] [ACT] on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: (SCC p.
620) "A word uttered in a fit of anger or emotion without [PRECEDENT] intending the consequences to actually follow cannot be said to be instigation. 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 for abetting the offence of suicide should be found guilty."
9. The Hon'ble Apex Court dealt with the similar issue in the case of of [PRECEDENT] 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] [ACT] 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.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
27. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under [SECTION] [ACT] against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under [SECTION] [ACT] against the appellant is quashed and all proceedings pending against him are also set aside."
10. The Hon'ble Apex Court dealt with the similar issue in the case [PRECEDENT] 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] [ACT] 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.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
27. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under [SECTION] [ACT] against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under [SECTION] [ACT] against the appellant is quashed and all proceedings pending against him are also set aside."
11. The Hon'ble Supreme Court in the case of [PRECEDENT] on 18 th January, 2019 has held as under:-
"9. The term instigation under [SECTION] [ACT] has been explained in [PRECEDENT] as follows:
"16. Speaking for the three-Judge Bench in [ENTITY] case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088], R.C. Lahoti, J. (as His Lordship then was) said that instigation is to [PRECEDENT] goad, urge forward, provoke, incite or encourage to do (2010) 1 SCC 707 (2009) 16 SCC 605: (2010) 3 SCC (Crl.) 367 "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.
17. 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"
(see Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.)."
10. Words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (See [PRECEDENT] 3).
11. We are of the opinion that the evidence on record does not warrant conviction of the Appellant under [SECTION] [ACT]. There is no proximity between the Panchayat held in September, 2001 and the suicide committed by [ENTITY] on 23.02.2002. The incident of slapping by the Appellant in September, 2001 cannot be the sole ground to hold him responsible for instigating the deceased to commit [PRECEDENT] suicide. As the allegations against all the three accused are similar, the High Court ought not to have convicted the Appellant after acquitting the other two accused.
12. We are not in agreement with the findings of the Trial Court that the deceased ([ENTITY]) committed suicide in view of the continuous threats by the accused regarding his being implicated in a false case of demand of dowry. The evidence does not disclose that the Appellant instigated the deceased to commit suicide. There was neither a provocation nor encouragement by the Appellant to the deceased to commit an act of suicide. Therefore, the Appellant cannot be held guilty of abetting the suicide by the deceased."
12. There was matrimonial dispute. Deceased [ENTITY], has criminal record although he has an advocate but about 9 cases [PRECEDENT] were registered against him. Petitioner-accused lodged a complaint against deceased [ENTITY] on 07/01/2013. It is mentioned in that information that deceased [ENTITY] abused and beaten her. Deceased [ENTITY] also abused her mother and father.
She also lodged a complaint against deceased [ENTITY] on 09/01/2013. It is mentioned in that complaint that deceased [ENTITY] demanded dowry due to this he abused and tortured her. Due to behaivour of deceased [ENTITY] she is bound to leave her matrimonial home. Marg was registered, inquiry was conducted and it was found that deceased [ENTITY] has criminal record. He was habitual drinker. It is evident that deceased [ENTITY] also filed a divorce petition against the petitioner-accused, so prima-
facie it cannot be said that petitioner-accused wants to marry to another person. There is no act or role of petitioner-accused to abet deceased [ENTITY] to commit suicide.
13. There is no evidence of active instigation/abetment by the petitioner-accused to deceased to commit suicide. There is no sufficient material to demonstrate that the petitioner-accused was involved in mental process of instigating the deceased to commit suicide or has intentionally aided the person to commit suicide. It is also revealed from the record that there is no evidence in relation to act of continuous torturing of the deceased and the Police officials have also reached the spot where incident occurred. Occurrence of such type of incident once or twice would not fall under the purview of abetment for suicide.
[PRECEDENT]
14. There are other various decisions such as case of [PRECEDENT]; Abdul Hanif v.
State of M.P. [2002 (II) MPWN 12]; [PRECEDENT]; [PRECEDENT];
[PRECEDENT];
[PRECEDENT]; and [PRECEDENT]. In all these decisions it is laid down that if the instigation for commission of suicide is not proved by the prosecution then certainly the charge under [SECTION] [ACT] cannot be framed.
15. Thus, on perusal of the decision of the Hon'ble Apex Court relied on in various decisions of this Court and on perusal of the total evidence available against the petitioner-accused, it is not proved by the prosecution that the petitioner-accused had ever instigated the deceased for commission of suicide and in view of that, framing of the charge under [SECTION] of [ACT] appears to be erroneous. Hence, the impugned order is liable to be set-aside. Consequently, the revision petition is allowed. The impugned order of framing of charge under [SECTION] of [ACT] against the applicants is set aside and the petitioner-accused is discharged from the aforesaid charges.
C.C. as per rules.
([ENTITY]) JUDGE MISHRA