Mitesh vs State Of U.P.
2021 Latest Caselaw 1164 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40859 of 2020
 

 
Applicant :- Mitesh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Bharat Singh Pal
 
Counsel for Opposite Party :- G.A.,Alok Kumar,A/A0447
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Bharat Pal Singh, learned counsel for the applicant, Sri Alok Kumar Singh, learned counsel for the complainant as well as learned A.G.A.

By means of this application, the applicant who is involved in case crime no.0878 of 2020, under Section 306 IPC, Police Station-Sahibabad, District-Ghaziabad is seeking enlargement on bail during the trial.

Pleading have been exchanged between the parties and the matter is ripe for the final arguments.

The prosecution story as flows from the FIR lodged by one Abhishek against the applicant and one Pawan. The FIR was lodged on 25.08.2020 for the incident said to have been taken place on 24.08.2020 with the story that the informant's sister Vandana (hence deceased) was working in a local Kailash Hospital, NOIDA from the last 5-6 years where the applicant was also doing his internship. Both of them were young and major and developed tender feelings towards each other and the applicant allegedly promised her to marry. In this background, they crossed all the limits of decency when they established physical relationship prior to their marriage. One day, Vandana and her father went to the applicant's place with the proposal of marriage. They were utterly humiliated and rather misbehaved by the father of the applicant. The father of the applicant has point blank refused to marry the applicant with Vandana. The dreams of the girl were shattered and in the stage of deep depression on 24.08.2020, she has committed suicide.

Learned Senior Counsel has drawn the attention of the Court to Annexure-1 i.e. G.D. entry dated 25.08.2020 at 4:37 in the morning applicant himself informing the police about the said suicide of deceased-Ms. Vanada. On 24/25.08.2020 around 10:56 in the night, she has given a video call to him and mentioned that she wants to commit suicide. The applicant stated, that initially, he saw that she was amusing but thereafter, he saw that she has tied her scarf with the ceiling fan tying around her neck and climbed over the chair. The applicant has scolded her not to do so but right in front of the applicant, she has committed suicide by hanging herself. Immediately, the applicant rushed to the spot and thereafter informed the police. The doors were locked from inside and with the aid and help of police personnel, her dead body was taken down.

On this prosecution story, learned counsel for the applicant has stated that this is a clear case of "aborted love affair". Both these persons were major and gainfully employed in the hospital. They have developed certain amount of intimacy but fact remains that relying upon the alleged promise, both of them have crossed the limits of decency and established physical relations among themselves. The father of the applicant refused point blank that he is not going to marry his son with Vandana(deceased) and out of sheer frustration, she has committed suicide. The post mortem report reveals that there is a singular ligature mark around the neck and the cause of death is asphyxia as a result of ante mortem hanging.

In the counter affidavit filed by Sri Alok Kumar Singh, learned counsel for the informant has drawn the attention of the Court to 161 Cr.P.C. statement of Ashok Panchal, Manju, wife of Ashok Panchal and many other persons where they have reiterated the prosecution story in different shades and textures. In paragraph no.4 of the counter affidavit, learned counsel for the complainant admits that there was a love affair between them and she has consented to be sexually exploited by the applicant on alleged false promise of being married. She was major girl, employed in the hospital, understand the far-reaching repercussions of pre-marital sex, still she has surrendered herself before her beloved. Certainly, this consent was not obtained in fear or misconception as decided in the judgment of Hon'ble the Apex Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra reported in (2019) 3 SCC (Cri) 903 and Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others reported in 2019 AIR (SC) 327.

So far as the refusal by the father of the applicant is concerned, it is submitted by learned counsel for the informant that this has hurt the respect and self-esteem of the deceased, ultimately this action has abetted to take this extreme step of self-immolation.

After hearing the rival submissions and perusing the material on record, there are two aspect of the issue which conjointly provoked her to commit suicide. Firstly, she was having relationship with the applicant and crossing all limits of decency, they touched another extreme with full knowledge and consent. By no stretch of imagination, the consent is said to be by putting a fear of fraud. It was the conscious decision of the couple and therefore, the applicant alone cannot be held responsible for this conduct. For a lady, her privacy is the greatest asset and ornament and has to be maintained at all costs and when the same has been looted by her own consent, rest of the humiliation part are negligible in front of that.

After hearing the rival submissions by the learned counsels, lets decide the moot pertinent question of law as to whether any conduct of the applicant would fall within the ambit of Section 107/306 IPC? Lets spell out the bare provisions of above-mentioned sections and related citations of Hon'ble the Apex Court in this regard. They are :-

Section 306 IPC provides the punishment for abetment of suicide, which reads thus :-

"Section 306- Abetment of suicide.- If any person commit suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extended to ten years, and shall also be liable to file."

Section 107 of the IPC defines the abetment, which reads thus:-

"Section 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 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."

The word instigate literally means to goad, urge, forward, provoke, insight encouraged to do an act. A person is said to instigate another person, when he actively suggest or stimulates him to an act by means of language, direct or indirect or whether it takes the form of expression solicitation or of hints incitement or encouragement, instigation may be in expression word or may be simply conduct if a person created such a situation exploiting his position that an another person have not other option but to take the extreme step would be liable for abetment.

On this, learned counsel for the applicant has drawn the attention of the Court to the various legal pronouncement of Hon'ble Apex Court in this regard i.e. Abetment.

In the case of Chitresh Kumar Chopra vs. State (Gov. of NCT of Delhi) reported in (2010) 3 SCC (Crl.) 367, the relevant extract of paragraph 14 of the judgement quoted hereinbelow :-

"Speaking for the three-Judge Bench, 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 be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must 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."

There is yet another judgement of Hon'ble Apex Court in the case of Amalendu Pal alias Jhantu Vs. State of West Bengal reported in (2010) 1 SCC 707. Paragraph 12 and 13 of the judgement is quoted herein below:-

"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence underSection 306IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their 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, conviction in terms ofSection 306IPC is not sustainable.

13. In order to bring a case within the purview of Section 306of 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 306IPC."

The pioneer judgement in this regard of Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh reported in (2001) 9 SCC 618. For ready reference, the relevant extract of the judgement is quoted herein below:-

"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."

There is yet another judgement of Hon'ble Apex Court in the case of State of West Bengal Vs. Orilal Jaiswal reported in (1994) 1 SCC 73. For ready reference the relevant extract of the judgement is quoted herein below:-

"This Court has cautioned that 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 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."

In the case of Ramesh Kumar Vs. State of Chhattisgarh (supra) Hon'ble Apex Court again observed in paragraph 20 of the judgement which is quoted herein below:-

"20.... The question as to what this the cause of a suicide has no easy answers because suicidal ideation and behavious in human beings are complex and multifaceted. Different indivicuals in the same situation react and behave differently because of the personal meaing 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."

In the latest judgement of Hon'ble Apex Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Others decided on 27.11.2020 in Crl. Misc. Criminal Appeal No. 742 of 2020. Paragraph 57 of the judgement is quoted herein below:-

"The Hon'ble Apex Court has provided the guidelines that while considering the application for grant of bail under Article 226 in a suitable cases, the High Court must considered the settled factors, which emerges from the precedents of this Court. These factors can be summarized as follows:-

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations."

Taking into account the totality of the circumstances and the guidelines provided by Hon'ble the Apex Court under section 306 IPC, the Court finds that present case is a simple case and aborted love affair. The father of the applicant when refused, she has taken her life. The humiliation part has added the misery of the girl which she was suffering from.

Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.

Let the applicant, Mitesh, who is involved in case crime no.0878 of 2020, under Section 306 IPC, Police Station-Sahibabad, District-Ghaziabad, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HIM IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.

4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 20.1.2021

Sumit S