Pradeep Kumar Tank vs State Of U.P. And Another
2019 Latest Caselaw 1944 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On: 27.02.2019
 
							 Delivered On : 29.03.2019
 

 
Case :- APPLICATION U/S 482 No. - 10015 of 2006
 

 
Applicant :- Pradeep Kumar Tank
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Mukhtar Alam
 
Counsel for Opposite Party :- Govt. Advocate,Narsingh Pandey
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Mukhtar Alam, learned counsel for the applicant, Sri Narsingh Pandey, learned counsel for the opposite party no.2 and learned A.G.A. for the State.

The present application under section 482 Cr.P.C. has been filed for quashing charge sheet dated 27.08.2005 and the entire proceeding of Criminal Case No.668 of 2006 (State Vs. Nirmal & Others), under Sections 306, 506 IPC, Police Station- Najibabad, District- Bijnor and including the order of cognizance dated 03.05.2006.

Learned counsel for the applicant submitted that frivolous FIR has been lodged on 17.05.2005 by the opposite party no.2 against the three persons, namely, Sardar Nirmal Singh, Dr. Ram Gopal & Pradeep Kumar-applicant and in the FIR and there is no direct allegation against the applicant. Ultimately trial was concluded with regard to co-accused Sardar Nirmal Singh and Ram Gopal and they have been acquitted by the Court below vide orders dated 30.7.2012 & 1.7.2009 and both the prosecution witnesses were declared hostile. In their statement recorded before the trial Court, both the witnesses have clearly stated that they have not seen that his father has taken loan from the Sardar Nirmal Singh & applicant and on the basis of information received from nearby persons, they have mentioned the name of applicant along with other co-accused.

He further submitted that as per settled provision of law, if the allegation and prosecution witnesses are same and co-accused are acquitted on the basis of testimony of the same prosecution witnesses, applicant may also be discharged and he cannot be punished. In support of his contention, he has placed reliance upon the judgments of this Court in the cases of Diwan Singh vs. State reported in 1964 Lawsuit (All) 182, D.K. Agarwal Vs. State of U.P decided on 15.9.2016 and Aagoshe Iram vs. State of U.P. & Another reported in 2017 Lawsuit (All) 1546 in which criminal proceeding was quashed and accused were discharged on the ground of acquittal of co-accused, which are having the same allegation and same prosecution witnesses.

He also placed reliance upon the judgments of this Court passed in Criminal Misc. Application Nos. 5779 of 1999, (Begum & Others vs. State of U.P. & Ors) decided on 15.07.2005, 13760 of 2005 (Zahrun Nisa vs. State of U.P. & Ors) decided on 22.09.2005 and 15521 of 2005 (Darshan Singh and Ors vs. State of U.P) decided on 24.10.2005 in which too, Court has quashed the criminal proceedings on the ground of acquittal of co-accused on the same set of witnesses.

He also argued his case on merits and submitted that even on merit no case of abetment of suicide is made out against the applicant as there is only allegation of demanding his money back, which was taken by the deceased as loan. He placed reliance upon the judgment of Apex Court in the case of Rajesh vs. State of Haryana decided on 18th January, 2019 and submitted that as per Section 306 IPC, person who is alleged for abetment must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. He further submitted that even in the FIR, there is only allegation of physical and mental torture of deceased for demanding his money back, which was also denied by the prosecution witnesses before the trial Court in the matter of co-accused, namely, Sardar Nirmal Singh and Ram Gopal.

He further submitted that even opposite party no.2 has also filed supplementary affidavit before this Court and stated that opposite party no.2 does not want to prosecute any criminal proceeding against the applicant.

Mr. Narsingh Pandey, learned counsel for the opposite party no.2 has supported the case of applicant so far as facts are concerned and further submitted that after recording the statement of deponent as well as his brother, trial Court has acquitted both the accused from the charges framed against them. He further submitted that witnesses are same and deponent does not want to prosecute the applicant in case this Hon'ble Court pleased to quash the charge sheet, he has no objection.

Learned A.G.A. for the State has opposed the prayer made by the learned counsel for the applicant, but could not dispute the aforesaid facts.

I have considered the rival submission made by the learned counsel for the parties and perused the record as well as judgment and order of acquittal dated 30.7.2012 and 1.7.2009 given by the Court below in the matter of co-accused, namely, Sardar Nirmal Singh and Ram Gopal. As per FIR version, there is only allegation against the applicant as well as other co-accused is that deceased has taken loan from the applicant and other co-accused, which he could not be paid for which the applicant and other co-accused were torturing him. Both the prosecution witnesses before the trial Court has clearly stated that neither they have seen his father (deceased) taking loan from the applicant and other co-accused nor they have tortured his father (deceased) before them.

Considering their testimony, they have been declared hostile and ultimately co-accused are acquitted by the Court below. In the present case, there is no separate witness and both the witnesses have also stated before the trial Court in both the trials that they have not seen his father taking loan or tortured by the co-accused alongwith applicant. In case of applicant also, there is no independent witness except the witnesses, who have given their testimony before the trial Court in the matter of co-accused.

In the matter of Diwan Singh (Supra), this was the issue that if allegation & witnesses are same and after examination of witnesses one accused is acquitted, then other co-accused can be punished or not. This Court has clearly held that under such circumstances the conviction of co-accused cannot be sustained.

Relevant paragraph Nos. 4, 5 & 6 of the judgment of Diwan Singh (supra) are quoted hereinbelow:-

"4. Learned counsel for the applicant has argued that both Manohar and the applicant were arrested together, searched together and as a single recovery list was prepared about the articles alleged to have been recovered from them and as the same witnesses were examined. by the prosecution in both the trials before the Magistrate, it will be incongruous to convict one of them on the basis of the same evidence and to acquit the other. I find force in this contention,

5. The judgment of the learned Sessions Judge in Criminal Appeal No. 262 of 1963 setting aside the conviction and sentence of Manoliar was not challenged by the State by filing an appeal and, as such, has become final. It is no doubt true that the learned Sessions fudge acquitted Manohar on a technical ground because, in his opinion, "the prosecution suffers from a patent infirmity creating reasonable doubt regarding the identity of the alleged fire arms". He did not disbelieve the evidence of the prosecution on facts. The reasoning given by the learned Sessions Judge in acquitting Manohar is not very appealing but the fact remains that Manohar who was arrested along with the applicant on the same charge and against whom the same evidence has been produced by the prosecution, has been acquitted, while the appeal of the applicant against his conviction was dismissed by the learned 1st Additional Sessions Judge of Etawah. In view of the acquittal of Manohar on the same facts and on the same evidence which has become absolute, it is not possible to maintain the conviction of the applicant.

6. If two persons are prosecuted, though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anamalous position in law and is likely to shake the confidence of the people in the administration of justice. Justice is not only to be done but also seem to be done. Therefore, I am clearly of opinion that as has been held in the case of Pritam Singh v. State of Punjab. (S) AIR 1956 SC 415, the principle of stare decisis will apply in the present case and the applicant's conviction cannot be sustained."

Following the said judgments, in the matter of D.K. Agarwal and Aagoshe Iram (supra), this Court has quashed the criminal proceedings against the co-accused. Not only this, on the same ratio of law, this Court in the matter of Begum, Zahrun Nisa and Darshan Singh (supra), criminal proceedings are quashed after acquittal of co-accused.

So far as merit of the case is concerned, as stated earlier that there is only allegation against the applicant is that deceased has taken loan from the applicant and other co-accused, which he could not paid for which the applicant and other co-accused was torturing him.

I have also perused the judgment, which is also subject matter of appeal before the Apex Court in the matter of Section 306 IPC. The Court has taken conscious view and clearly stated that there must be active role by an act of instigation by the accused for making out the case under Section 306 IPC and ultimately appeal was allowed and conviction & sentence of appellant was set aside.

Relevant paragraph Nos. 7 to 9 of the judgment of Rajesh (Supra) are quoted hereinbelow:-

"7. It is necessary to refer to Section 306 IPC and Section 107 IPC 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 extend to ten years, and shall also be liable to fine.

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; 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."

8. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there 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. 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. (See Amalendu Pal alias Jhantu v. State of West Bengal).

9. The term instigation under Section 107 IPC has been explained in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) as follows:

"16. Speaking for the three-Judge Bench in Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088], R.C. Lahoti, J. (as His Lordship then was) 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 by 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 irrigating or annoying somebody until he reacts" ( see Oxford Advanced Learner's Dictionary, 7th Edn.)."

The facts of the present case is squarely getting support by the judgment of Apex Court whereas it is very much clear that there is no active role played by the appellant, which attracts the provision of Section 306 IPC.

Therefore, under such facts and circumstances as well as law laid down by the Apex Court, criminal proceeding in Criminal Case No.668 of 2006 (State Vs. Nirmal & Others), under Sections 306, 506 IPC, arising out of charge sheet dated 27.08.2005, Police Station- Najibabad, District- Bijnor against the applicant cannot be sustained and is hereby quashed.

Accordingly, the application is allowed. No order as to costs.

Order Date :-29.03.2019

Junaid