Vikash Sahu vs State Of Chhattisgarh
2022 Latest Caselaw 4604 Chatt

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                                                                            NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                              CRR No. 516 of 2022
     1. Vikash Sahu S/o Tipuram Sahu Aged About 29 Years R/o.
        Village Charoda, Ward No. 09, House No. 245/2, Police Station
        Dharsiwan, District Raipur Chhattisgarh.
     2. Tipuram Sahu S/o Late Dasru Ram Sahu, Aged About 56 Years
        R/o. Village Charoda, Ward No. 09, House No. 245/2, Police
        Station Dharsiwan, District Raipur Chhattisgarh.
     3. Uttam Sahu S/o Tipuram Sahu Aged About 26 Years R/o.
        Village Charoda, Ward No. 09, House No. 245/2, Police Station
        Dharsiwan, District Raipur Chhattisgarh.
     4. Urmila Bai W/o Tipuram Sahu Aged About 46 Years R/o. Village
        Charoda, Ward No. 09, House No. 245/2, Police Station
        Dharsiwan, District Raipur Chhattisgarh.
                                                       ---- Applicants/accused
                                      Versus
        State Of Chhattisgarh Through The Station House Officer,
        Police Station Gurur, District Balod Chhattisgarh.
                                                                  ---- Respondent
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For Applicants : Shri Pawan Kesharwani, Adv.

For State : Shri Gurudev I. Sharan, Govt. Adv.

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Hon'ble Shri Justice N.K. Chandravanshi Order on Board 20-7-2022

1. This criminal revision is brought before this Court challenging the legality, propriety and correctness of the order dated 29-3-2022 passed by the First Upper Sessions Judge, Balod, Distt. Balod in S.T. No. 37/2020 framing charge against the applicants under Section 498-A/34 and 306/34 of the Indian Penal Code. (in short 'IPC').

2. Brief facts of the case are that on 5-2-2019, at about 12.00 noon, Damini Sahu committed suicide by hanging in her parental home. On the basis of information given by her father, merg report No. 12/2019 was lodged at PS Gurur, distt. Balod. Police recovered the body, inquest was prepared and post mortem was conducted on the body, wherein the doctor opined that cause of

death was due to hanging. Due to inaction by concerned police station in respect of further investigation, father of the deceased made written complaint to higher police officials. Based on the written complaint, FIR under Section 498-A, 306 of the IPC was registered only against applicant no. 1 (husband of the deceased). In written complaint, it was alleged that marriage of Damini Sahu (since deceased) was solemnized with applicant No. 1 Vikas Sahu on 8-2-2015. In the year 2016, they blessed with a male child. Since after the marriage, her husband and his father, mother, brother and Devrani started harassing her physically and mentally, hence, she had made complaint to the Superintendent of Police, Raipur, Mahila Thana, Raipur and other higher officials on 8-6-2018. She has also sent legal notice to applicant No. 1 Vikas Sahu for grant of maintenance. It is also alleged that before marriage, the applicants had told them that neither they eat meat nor consume liquor, but after marriage when deceased went to her matrimonial home, she found that the applicants not only eat meat but also consume liquor and they also used to pressurize her to clean such utensils. It is also alleged that many times, the applicants committed marpeet with the deceased and also threatened to kill her. Even they also restricted her to feed mother milk to her child. It is also alleged that husband Vikas Sahu had made video of their physical relation and used to tell her that he will show the same to his friends and defame her. Hence, the deceased herself had sent complaint on 8-6-2018 to higher officials including Mahila Thana, Raipur. In counselling, the applicant did not appear and due to all these humiliation and torture meted out to the deceased by the applicants, she committed suicide.

3. During the course of investigation, a hand written statement allegedly written by the deceased titled as " Mera Charoda Nahin Jane Ka Karan " was seized from her father Churaman Lal Sahu, complaint made by the deceased to the Superintendent of Police, Raipur against the applicants in respect

of harassment for demand of dowry, and legal notice given by her, were also seized from her father, answer sheets of Class 11 of the deceased were seized from the Principal of concerned Government Higher Secondary School. Statements of mother, father and other relatives of the deceased/witnesses were also recorded and after investigation, charge sheet under Section 498A, 306, 34, IPC was filed against the applicants. Vide Order order dated 29-3-2022, learned trial Court framed charge under Section 498A/34 and 306/34 of the IPC against the applicants, which has been assailed by them by way of filing instant revision.

4. Learned counsel for the applicants submits that the impugned order suffers from illegality for the reason that prima facie, no case is made out against the applicants for framing of charge for aforesaid offences. It is further submitted that the applicants neither harassed the deceased nor demanded any article or dowry from her, rather the deceased was having some mental problem, hence she doubted everyone of her matrimonial home that nobody was taking care of her and everyone scolds her. It is further submitted that in the month of May or June, 2018 she herself had left her matrimonial home and thereafter about 7-8 months she committed suicide in her parental home. Hence, there is no connection with any act of the applicants with the act of suicide. Relying on the judgment of M. Arjunan -v- State [(2019 (3) SCC 315], it is submitted that for framing of charge under Section 306, IPC, prosecution is required to prima facie establish necessary ingredients against the applicants for abetment for commission of suicide, as defined under Section 107 of the IPC. But, in the instant case, essential ingredients of abetment of alleged offence are totally missing. It is further submitted that if the evidence available on record is accepted in toto, then also, it is not sufficient to hold the applicants guilty under Section 306, IPC, therefore, the order of framing of charge against the applicants, particularly under Section 306, 34, IPC is perverse and bad in law.

5. On the other hand, learned State counsel submits that while residing in her matrimonial home, the applicants frequently used to torture her physically and mentally for demand of dowry and in day to day domestic behaviour which she has noted in her hand written note, hence the order impugned does not suffer from any infirmity or illegality and the same does not call for any interference by this Court.

6. I have heard learned counsel for both the parties and perused the impugned order, copy of the charge sheet filed by the applicants and material available on record, carefully.

7. The question involved in this case is whether on considering the entire material available, to be correct, prima facie case of abetment for commission of suicide under Section 306/34 and 498/34, IPC, is made out against the applicants or not ?

8. At this stage, it is appropriate to look into the provisions of Section 306 and 107 of the IPC, which reads thus :-

"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, 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 willful misrepresentation, or by willful concealment of a material fact which he is bound to dis- close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

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."

9. As per the definition given in Section 107 of the IPC, an abetment is constituted by any one of the following three ingredients:

"(i) instigating a person for doing of a thing, or

(ii) engaging in a conspiracy for the doing of that thing, or

(iii) intentionally aiding the doing of that thing."

10. In Sanju @ Sanjay Singh Sengar -v- State of MP [(2002) 5 SCC 371] in paragraph 12 of its judgment, the Supreme Court has held that the word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation.

11. In M. Mohan v. State, represented by the Deputy Superintendent of Police [(2011) 3 SCC 626], the Supreme Court has held that "Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section 306 of the IPC. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide"

12. In Ramesh Kumar -v- State of Chhattisgarh [(2001) 9 SCC 618], it has been observed by Hon'ble Supreme Court 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."

13. Further, it has been observed by Hon'ble Supreme Court in Gangula Mohan Reddy -v- State of Andhra Pradesh [(2010) 1 SCC 750 ] that :-

"17. 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 this act must have been intended to push the deceased into such a position that he committed suicide."

14. On a close reading of Section 107 of the IPC and the above principles laid down by the Hon'ble Supreme Court, it is apparent that in a case under Section 306 of the IPC, there should be clear mens rea to commit offence under this section and there should be direct or active act by the accused which led the deceased to commit suicide. That is to say that there must be some evidence of "instigation", "co-operation" or " initial assistance" by the accused to commit suicide by the victim/ deceased.

15. So far as case in hand is concerned, if the evidence available against the applicants is considered, then this Court finds that as per statement of mother of the deceased, about a week before Diwali festival in the year 2018, the applicants had ousted the deceased from her matrimonial home after committing marpeet with her, hence she had made complaint dated 8-8- 2018 to the Superintendent of Police, Raipur, Mahila Thana, Raipur and other officials and she had also sent legal notice to husband Vikas Sahu for grant of maintenance to her and their son. Statements of her parents and other relatives also reveal that thereafter the deceased was residing at her parental home where she committed suicide by hanging on 5-2-2019. Thus, as per case of the prosecution itself, the deceased committed suicide after about more than 5 months of leaving matrimonial home and that too, she committed suicide in her parental home. Although, statements of witnesses, written complaint made by the deceased to the Superintendent of Police, Raipur and legal notice given by her to her husband Vikas Sahu and also hand written note of the deceased, show that applicants' behaviour towards her was not good and the applicants used to torture her on various counts, which the witnesses have stated and which is required to be proved during the course of the trial, but these facts also do not fulfill the necessary ingredients for framing charge under Section 306 of the IPC against the applicants, as she has committed suicide after more than 5 months of leaving matrimonial home and in between there is no such evidence available on record that any of the applicants was in contact with the deceased and, therefore, no proximity is found with the conduct and behaviour of the applicants with act of the suicide committed by the deceased.

16. In the case of State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73], the Hon'ble Supreme 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 her 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.

17. From the facts of the instant case, it seems that parties are resident of village and their socio-economic situation seems to be poor and they had also differences in respect of eating of meat and consuming liquor. In such family, normally all the members work in their house and outside also, but the deceased was also having grievances in normal friendly behaviour in this regard. More over, as stated above, that she committed suicide after 5 months of leaving matrimonial home, hence it appears that due to maltreatment and harassment meted out to her by the applicants, she left the matrimonial home and despite making complaint against the applicants to police officials and giving legal notice to her husband for grant of maintenance to her and her son, she committed suicide which shows that she could not tolerate and sustain miseries, therefore, she ended her life by committing suicide.

18. In view of aforesaid discussion, the materials available on record do not demonstrate necessary ingredients for framing charge against any of the applicants for offence punishable under Section 306 of the IPC as there is no nexus or proximity with the conduct and behaviour of the applicants with the act of suicide committed by the deceased. Hence, prima facie case under Section 306, 34 of the IPC is not made out against any of the applicants. But, prima facie, there is sufficient material for framing

of charge under Section 498-A, 34 of the IPC against the applicants.

19. In the result, the instant revision is partly allowed. The impugned order of framing of charge against the applicants under Section 306, 34 of IPC passed by the 1st Upper Sessions Judge, Balod Distt. Balod, dated 29-3-2022 in ST No. 37/2020 is set aside and they are discharged from the above offence, however framing of charge against them under Section 498-A, 34 of the IPC is hereby affirmed.

Sd/-

(N.K. Chandravanshi) Judge

Pathak/-