1 [CASE NUMBER] HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH: BEFORE HON'BLE SHRI JUSTICE [ENTITY] CRIMINAL REVISION NO.4896 OF 2018 [ENTITY] Kumar Ahirwar & others Vs. The State of Madhya Pradesh Shri [ENTITY], learned counsel for the applicants. Shri [ENTITY], learned Government Advocate, for the respondent/State. ORDER
(17.12.2018) This criminal revision has been filed under [SECTION] of [ACT] on 1.10.2018 by the applicants against the order dated 14.9.2018 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, District Chhatarpur in [CASE NUMBER] by which the charge under [SECTION] of [ACT] has been framed against the applicants.
2. The facts of the case in brief are that [ENTITY] S/o [ENTITY], aged about 61 years, R/o [ENTITY], District Chhatarpur lodged a [CASE NUMBER] on 4.6.2018 in Police Station, Civil Lines, Chhattarpur. It is stated in the aforesaid Merg Intimation that in the intervening night of 3.6.2018 and 4.6.2018 at about 11:00 p.m. when all members of the family were sleeping, the elder son [ENTITY] shifted to another room at about 1:00 a.m. at night. In the morning at about 6:00 a.m. the complainant found that his son [ENTITY] is hanging from the ceiling fan by the help of a Sari. The Police inquired into Merg and after inquiry on 23.6.2018 the Police registered [CASE NUMBER] under [SECTION] of [ACT] against all three applicants. Thereafter the matter was investigated by the police and after investigation the police came to the conclusion that the suicide was committed by the deceased and the applicants are responsible for abetment of suicide. Therefore, the police filed [CASE NUMBER] under [SECTION] of [ACT] before the Magistrate Court, who committed the case to the Court of Sessions and thereafter the Sessions Judge made over the case to the Special Judge, who on 14.9.2018 framed the charge under [SECTION] of [ACT] against all three applicants. The charge is as under:-
vki e`rd iwju yky firk feghyky ds llqj@lkyk@lkM+w gksrs gq, feghyky dh iRuh dks mlds lkFk ugha Hkstrs Fks rFkk tc e`rd viuh iRuh dks ysus vki yksxksa ds ikl vkrk Fkk rks vki yksxksa ds }kjk la;qDrr% ,oa i`Fkd i`Fkd ekjihV dh tkrh Fkh ftlds QyLo:i e`rd }kjk fnukad 03-06-18 dks jkr 11 cts ls 04-06-18 ds izkr% 06 cts ds e/; xzke xqjS;k fLFkr vius ?kj esa Qkalh yxkdj vkRe gR;k dh vkSj mls bl rjg ejus ds fy, foo'k dj vkids }kjk vkRegR;k dk mRizsj.k fd;k x;k x;k] ,slk djds vkius og vijk/k fd;k gS tks /kkjk 306 fodYi esa 306@34 Hkknfo ds rgr n.Muh; gksdj bl U;k;ky; ds laKku esa gS A
3. It is submitted by the learned counsel for applicants that the order of framing of charge is improper, incorrect and illegal in the eyes of law. Previously, a complaint was filed before the Parivar Paramarsh [ENTITY], which is still pending. There was some dispute between the deceased and his wife. Due to harassment by the deceased, his wife was not willing to live with him. Applicant no.1 is the brother of wife, applicant no.2 is the father of wife and the applicant no.3 is the husband of the sister of wife of deceased. Applicant no.3 is residing far away of 20 kms. from the house of deceased. There is no material against the applicants to proceed with the trial. Therefore, the order of framing of charge is liable to be set aside. It is also submitted that if the prosecution case is accepted as it is, even then the charge could not be framed under [SECTION] of [ACT]. Therefore, it is requested to set aside the impugned order dated 14.9.2018.
4. On the other side, the State strongly opposed the revision. It is submitted by the State that sufficient evidence has been collected during the investigation. The applicants are responsible for abetting the deceased and because of their abetment the deceased committed suicide. Therefore, the trial court has not committed any mistake by framing the charge under [SECTION] of [ACT] against the applicants.
5. This revision is against the order of framing of charge. It is trite that at the stage of framing of charge, 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 or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. In order to properly comprehend the scope and ambit of [SECTION] of [ACT], it is important to carefully examine the basic ingredients of [SECTION] of [ACT]. The said section is reproduced 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 extend to ten years, and shall also be liable to fine."
6. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self. 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.
7. From a bare reading of the provision, it is clear that to constitute an offence under [SECTION], [ACT], the prosecution has to establish:
(i) that a person committed suicide, and
(ii) that such suicide was abetted by the accused.
In other words, an offence under [SECTION] would stand only if there is an "abetment" for the commission of the crime. The parameters of "abetment" have been stated in [SECTION] of the [ACT], which defines abetment of a thing as follows :
"[SECTION]. 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 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 facilitates the commission thereof, is said to aid the doing of that act".
8. Reading of [SECTION] and [SECTION] together it is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under [SECTION] of the [ACT] for abetting the commission of suicide. A plane reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide.
9. As per the Section, a person can be said to have abetted in doing 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. Explanation to [SECTION] states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under [SECTION] of the [ACT].
10. As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who "instigates" any person to do that thing. The word "instigate" is not defined in the [ACT]. The meaning of the said word was considered by the Supreme Court in [ENTITY] v. State of Chhattisgarh[(2001) 9 SCC 618 : (2001 AIR SCW 4282)]. It has been said that 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.
11. The Supreme Court in [PRECEDENT] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words 'instigation' and 'goading'. The Court said :-
"Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage 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 Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter."
12. The Apex Court in this aforesaid case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), reported in 2009 (16) SCC page 605 :
(AIR 2010 SC 1446), reiterated the legal position laid down in its earlier three Judges Bench judgment in the case of [ENTITY] v. State of Chhattisgarh, reported in AIR 2001 SC page 3837 : (2001 Cri LJ 4724) (1) and held that where the accused by his acts or continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an instigation may be inferred. Their Lordships in the aforesaid case of [PRECEDENT] (supra), summed up the legal position as under :-
"In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and,
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation."
The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person suicidability pattern is different from the other. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
13. In the Case of [PRECEDENT] the Supreme court said 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 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. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day- to-day life."
14. In [PRECEDENT], the Supreme Court has observed that the Courts 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 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 of abetting the offence of suicide should be found guilty.
15. In the case of [PRECEDENT], Hon'ble Supreme court observed that whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. In this case out of 11 months of married life, the deceased was forced to live in her parents' house and could live with her husband for a period of two months in different spells. The Court also took note of the fact that the accused did not try to save the deceased although he was present when burn injuries were caused to her therefore accused is liable to be convicted for offences under [SECTION] and [SECTION] [ACT]
16. In [PRECEDENT], The Supreme court said that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under [SECTION] of [ACT].
17. In this case, the basis of framing the charge are the dying declaration of the deceased and the statements of [ENTITY] (father of deceased), [ENTITY] (brother of deceased), [ENTITY] (mother of deceased). As per prosecution case, the deceased has left a suicide note and the handwriting of aforesaid suicide note is yet to be verified. In the suicide note the deceased has written as under:-
lfork vkt eSa ejus tk jgk gWw rsjs dkj.k ugha rsjs HkkbZ ikik vkSj vkseizdk'k cguksbZ ds dkj.k vc lfork vkt ftlds lkFk tkuk gS mlds lkFk pys tkuk ysfdu xw [kkrs gh jgsxh A
18. If we presume that the suicide note was written by the deceased himself, then it appears from the aforesaid suicide note that no cause has been mentioned. The facts mentioned in the aforesaid note are not sufficient to draw a presumption that the suicide was abetted by the accused persons.
19. The applicants also filed the order-sheets written in the Parivar Paramarsh [ENTITY] by obtaining the copies through [ACT]). It appears from the aforesaid order-sheets that deceased [ENTITY] filed an application on 2.5.2018 before the Parivar Paramarsh [ENTITY], Chhatarpur. On 16.5.2018 the deceased and his wife [ENTITY] both appeared before the aforesaid [ENTITY]. The deceased stated that before one year, he was married with [ENTITY]. On 29.4.2018 they had gone to attend the marriage of her cousin brother. Wife [ENTITY] told him that she had married with him only for a period of one year, then the deceased slapped her and came back. Thereafter, the deceased went there for three times, but the wife refused to come with him. She also broken the bangles of her hand and was saying that his husband has been expired.
20. On the other side, wife [ENTITY] stated before the aforesaid [ENTITY] that her husband used to beat her just after the second Vida. Once upon a time, the husband brought noodles (pk;uht) and gave her. When they were eating, the husband said that her brother [ENTITY] is her husband (esjs HkkbZ izeksn dks esjk [kle cksyk). She again said that she threw the noodles and left the place but the husband beat her brutally and caused injury in her eye. The mother-in-law also abused her and after 2 or 3 days the husband himself took her to her maternal home and left there. Some other allegations of cruel behaviour by the family of husband has also been stated in the statement. Even she said in her statement that her sister-in-law (uaun) beat her by the help of shoe and brother-in-law [ENTITY] also beat her in the month of April. She again said that when she was annoyed and refused to drink water, then husband poured water upon her and also urinate upon her. At that time, the husband was in drunken condition. He has not given any article to her and she is not having the faith upon her husband and she is not willing to go with him.
21. Therefore, it appears from the aforesaid statements of both the parties that the relationship between husband and wife was not cordial. The wife was not willing to live with her husband because of his cruel behaviour. The husband tried to take her back for 2 or 3 times, but she refused. It is also an admitted position that no any suit of restitution of conjugal rights or divorce was filed neither by the husband nor wife.
22. The police recorded the statements of father, mother and brother of the deceased under [SECTION] of [ACT]. The same type of statements have been recorded. It is transpired from the statements that the deceased went 2 or 3 times for taking back his wife from her maternal home but she refused to come. It is stated in the statements of aforesaid witnesses that the deceased told them that accused persons insulted him and were telling that they will not send [ENTITY] even he died. vc lfork dks rqEgkjs ?kj ugh Hkstuk gS pkgs rqe ej tkvks -
23. Whether the aforesaid statements are sufficient to draw a presumption that the accused persons abetted the suicide. The answer will be 'No". In this regard, it will be useful to refer some case laws. In [ENTITY] v. State of Chhattisgarh, (2001) 9 SCC 618 = AIR 2001 S.C. 3837 = 2001 AIR SCW 4282, (Three-Judge Bench of the Supreme Court) a dispute was 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. The Court in para 20 has examined different shades of the meaning of 'instigation'. Para 20 reads as under:
"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."
24. In [ENTITY] Singh v. State of M.P., 1995 AIR SCW 4570 = 1996(1) MPJR 192 = 1996 Cri.L.R. 15 = 1996 Cri.L.J. 894, the allegations leveled were as under:
"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."
Hon'ble Supreme Court, after 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. The Court further held that ingredients of abatement are not attracted on the statement of the deceased. The court said that the conviction of the appellant under [SECTION] [ACT] merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law.
25. In [PRECEDENT], the accused was charged for an offence under [SECTION] [ACT] on the ground that the accused, during the quarrel, is said to have remarked the deceased 'to go and die'. The Court said 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.
26. In [PRECEDENT] the accused asked to the deceased 'to go and die'. The supreme court said that these words itself, without requisite mens-rea, does not constitute instigation. The court said :-
"Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or inadvisable action or to stimulate of incite. Presence of mens-rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens-rea."
Therefore, it can be said that aforesaid evidence is not sufficient to hold that accused persons abetted the suicide.
27. It is also submitted by the counsel for State that due to cruel behaviour of accused persons and due to insult by them, the deceased committed suicide. This argument is also not having any force in the light of established law.
28. In [PRECEDENT], it has been held that Cruel or insulting behaviour cannot be taken as an act of abetting suicide, more active role which can be described as instigating or aiding doing of a thing is thus required before a person can be said to be abetting suicide.
29. After taken into consideration [PRECEDENT] and [PRECEDENT] it has been said by the High Court in [PRECEDENT] that refusal of permission of husband to wife to go to parents house would not be a penal offence and conviction under [SECTION] of the [ACT] on such count is not suspensible.
30. In [PRECEDENT] suicide was committed by the deceased after beating by the accused. The lower court was of the view that because of the beating by the accused the deceased probably felt bad therefore he must have committed suicide. In the above circumstances the court said that in absence of the positive evidence that either of the accused instigated some person to do a particular thing or engaged himself or someone for commission of the offence or for illegal omission or intentionally aided in commission of the act by their own acts or illegal omissions it would not be entitled to secure a conviction of the accused persons. The Court observed:-
"[SECTION] of [ACT] provides punishment of abetment, if the act abetted is committed in consequence and where no expression provision is made for his punishment. As [SECTION] makes special and express provisions for punishment, the provision of [SECTION] would not be applicable. For providing abetment a Court is obliged to see not only the evidence brought on record but also the definition which defines abetment. The prosecution unless proves application of either of the clauses provided under [SECTION], [ACT] would not be successful in securing the conviction of the accused. The prosecution had miserably failed in showing the application of any of the clause provided in [SECTION], [ACT]. ; The criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be an innocent. The burden to prove the ingredients constituting the offence is on the prosecution and not on the accused. If the prosecution fails to connect the act of the accused with the ultimate crime and material links which constitute the chain are missing the accused would be entitled to an acquittal."
31. In the case of [PRECEDENT], the wife of the appellant committed suicide on account of the cruelty and harassment meted out to her by the appellant therein. Considering the earlier judgments in the cases of [ENTITY] v. State of Chhattisgarh; [PRECEDENT], the Court held that the allegation that the appellant did not like to keep the deceased with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the appellant intended to remarry and had told his wife about it, or that the deceased had once come to her father's house in an injured condition, or even the allegations regarding beatings, do not find place in the statements recorded by the police in the course of investigation and under the aforesaid circumstances the Court has found that the prosecution has failed to establish the offence under [SECTION], [ACT] and set aside the conviction.
32. It is also stated in the statement that the deceased was beaten on 29.5.2018 by the applicants. Even we presume that all allegations are true, the deceased was beaten by the applicants, the applicants insulted the deceased and the applicants refused to send the wife of deceased with him, then looking to the aforesaid pronouncements of Hon'ble Courts it cannot be said that the applicants abetted the deceased to commit suicide. If the wife was not willing to live with the deceased, then the deceased was having an option to file a suit for restitution of conjugal rights or for divorce. If he was beaten by the applicants, then he was also having an option to lodge the first information report. In any condition, the aforesaid allegations cannot fulfill the conditions mentioned in [SECTION] of [ACT] and do not constitute the offence of [SECTION] of [ACT]. Therefore, the trial court has committed the error in framing the charge under [SECTION] of [ACT] against the applicants.
33. Hence, the revision is allowed. The order dated 14.9.2018 of framing of charge by the lower Court is hereby quashed and the applicants are discharged from the aforesaid charge.
([ENTITY]) JUDGE TG/-