Shri Dinesh vs The State Delhi
2010 Latest Caselaw 205 Del

*       HIGH COURT OF DELHI : NEW DELHI

        Crl. Rev. P. No. 454/2008 & Crl.M. A. No. 9621/2008

%      Judgment reserved on:            08th January, 2010

       Judgment delivered on:           15th January, 2010
           Shri Dinesh
           S/o Sh. Jagdish Chand,
           R/o RZ-B-78, Gurdwara Road,
           Mahavir Enclave,
           Delhi.                                              ....Appellant.

                                  Through:     Mr. R. S. Malik, Adv.
                         Versus

          The State Delhi
          (Govt. Of NCT Of.)                                 ....Respondent.

                                  Through:     Mr. Arvind Kumar Gupta, APP for
                                               the State.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

V.B.Gupta, J.

Present petition has been filed against order dated 23rd July, 2008, passed

by Additional Session Judge, Delhi, for setting aside the order on charge as well

as charge framed against the petitioner.

2. As per allegations made in the FIR deceased (Deepak) and petitioner

Dinesh were cousins. There was some discord between them with regard to the

transfer of some property by their grandmother in the name of petitioner to the

exclusion, inter-alia of the deceased. It is alleged that on 23rd July, 2005, at about

7 P. M. deceased called petitioner at his house for some conversation. At about

9.10 P.M., when complainant Amit (who is brother of deceased), came back to his

house, he found the door bolted from inside. He peeped into the room down

through the door and saw that deceased had hanged himself with a plastic rope by

tying the same with T-iron rod of the roof with the support of the washing

machine lying on the floor. Complainant opened the door and raised an alarm and

immediately neigbhourers also came. Deceased was brought down on the ground

and was taken to a nursing home, where he was declared as „brought dead‟.

3. It is alleged by the complainant that, petitioner used to pick up quarrel

frequently with him (complainant) and his family members. Thus, the

complainant has full suspicion that his brother Deepak was tortured and harassed

by the petitioner, which compelled/forced Deepak to commit suicide.

4. On basis of this complaint, a case under Section 306 IPC was registered

against the petitioner. After completion of investigation, challan was filed in the

Court.

5. It is contended by learned counsel for the petitioner that charge has been

framed against the petitioner without there being an iota of evidence of any

abetment by the petitioner to commit suicide by deceased. In the FIR, there are

no allegations that petitioner ever abetted the deceased to commit suicide. FIR in

question does not disclose the commission of offence punishable under Section

306 IPC, as the essential ingredients of the offence defined under Section 107 IPC

are not fulfilled.

6. In support of its contentions, learned counsel for petitioner referred the

following judgments;

     (i)        Hira Lal Jain Vs. State,
                2000 VI AD (Delhi) 902;
     (ii)       Ms. Taposhi Chakervarti Vs. State,
                 2000 VII AD (Delhi) 629 and;
     (iii)      Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh,
                AIR 2002 Supreme Court 1998.

7. On the other hand, it is contended by learned counsel for the State that

there are specific allegations against petitioner in the FIR, that he used to pick up

quarrel with deceased and complainant from time to time, over the issue of the

property, belonging to the grandmother of the complainant. All the documents

are in possession of the petitioner. On this issue, petitioner harassed and tortured

deceased, to such an extent which forced deceased to commit suicide. Petitioner

came to the house of deceased and both of them, were together just before

deceased committed suicide. At this stage, the Court is not required to

meticulously judge the truth, the veracity and effect of the evidence. Only prima

facie, allegations made in the FIR are to be seen.

8. As per allegations made in the FIR, as petitioner has harassed and tortured

the deceased immediately before he committed suicide, there is sufficient material

on record, to frame charge against petitioner and no infirmity can be found in the

impugned order.

9. Section 306 of IPC reads as under;

"306. Abatment 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."

10. Abetment has been defined in Section 107 of IPC, which states:

"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.

Explanation1.- A person who, by willful misrepresentation, or by willful 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."

11. Above given ingredients are essential to complete abetment of a crime.

The word "instigate" literally means to provoke, incite, urge on or bring about by

persuasion to do anything. The abetment may be by instigation, conspiracy or

intentional aid, as provided in the three clauses of Section 107 of IPC.

12. In Sohan Raj Sharma vs .State of Haryana (AIR 2008 SC 2108), the

Court observed;

"Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing"

It further observed;

"In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide"

13. Similarly in Sanju @ Sanjay Singh Sengar (Supra),it was held:

"The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or 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. It is in a fit of anger and emotional"

14. In the present case, there is no material on the record which shows that the suicide

has been abetted by the petitioner. There is no suicide note or any eye witness to the

quarrel between petitioner and the deceased. In the FIR, no averment has been made with

regard to the petitioner‟s instigating the deceased, for suicide.

15. After careful perusal of the facts and circumstances of the case, even by any wild

stretch of imagination, no ground is made out for holding the petitioner, prima facie liable

for abetment of suicide of the deceased. The entire charge rests on the basis of mere

assumptions and has no merit. To attract the ingredients of abetment, intention of the

accused to aid or instigate or abet the deceased to commit suicide is necessary, which is

not there at all.

16. Under these circumstances, the present revision petition is allowed and the

impugned order on charge as well as charge dated 27th July, 2008 framed against the

petitioner by the trial court are set aside. The petitioner is discharged in this case.

17. Surety and bail bond stands cancelled.

+Crl.M.A. No.9621/2008

18. Disposed of being infructuous.

19. Trial court record be sent back.

15th January, 2010                        V.B.Gupta, J.
ab