Madhya Pradesh High Court

Dhoop Singh @ Jhallu Gond vs The State Of Madhya Pradesh on 1 April, 2021

Author: Rajendra Kumar Srivastava

          THE HIGH COURT OF MADHYA PRADESH
            PRINCIPAL SEAT AT JABALPUR
            Bench : Hon'ble Shri Justice Rajendra Kumar Srivastava

                              Cr.R. No.180/2021


              Dhoop Singh @ Jhallu Gond and another

                                        Vs

                                  State of M.P.

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Shri Rajesh Kumar Sen, learned counsel for the petitioners.
Shri Ramji Pandey, learned P.l. for the respondent/State.
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                                    ORDER

(01/04/2021)

This revision petition under Section 397/401 of Cr.P.C.

has been preferred by the petitioners being aggrieved by the order

dated 17.12.2020 in S.T. No. 111/2020 passed by 3rd Additional

Sessions Judge, Katni, whereby the learned ASJ has framed the

charge for the offence punishable under Section 306/34 of IPC

against the petitioners.

2. The prosecution case, on the Marg No. 16/2020 of

Section 174 of Cr.P.C., the matter was investigated by the In-charge

Officer. During investigation, it was found, on the basis of

information given by the family members of deceased (Koushlendra)

that petitioners/accused have committed marpeet with deceased due

to the said marpeet, deceased committed suicide by jumping in front

of the railway track at K.M.No. 1130/31-33 and his body was lying

in two parts at railway track. On 25.03.2020, police Station-GRP,

Katni has registered the case against the petitioners.

Cr.R. No.180/2021

3. Learned counsel for the petitioners submits that the

petitioners are innocent person and have been falsely implicated in

this case. He further submits that there is no evidence of harassment

or torture in the entire charge sheet and prosecution case, therefore

There is no case is made out under Section 306/34 of IPC against the

petitioners. He further submits that the family members have made

only omnibus allegation against the petitioners/accused. Family

members have falsely implicated the petitioners in the case only on

the basis of previous enmity. On these grounds learned counsel for

the applicant prays for setting aside the impugned order and

petitioner/accused be discharged from the Section 306/34 of IPC.

4. Learned counsel for the respondent-State submits that

there is prima facie evidence available on the record. Therefore, he

prays for dismissal of this revision.

5 Heard all the parties and perused the case-diary. Before

embarking on the facts of the case, it would be necessary to consider

the legal aspects first. Since the petitioners have challenged the

charge framed by the trial Court, by way of filing this revision

petition, therefore, I would prefer to deal with the provision of

Section 227 of Code Of Criminal Procedure, 1973, the same reads as

under:

"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Cr.R. No.180/2021

6. If the Court finds that sufficient material is available to

connect the accused with the offence, then Section 228 of Code Of

Criminal Procedure, 1973, comes into role, provision is also quoted

as under:

"228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

7. The Hon'ble Supreme Court in the case of Niranjan

Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj

Bijja and others (AIR 1990 SC 1962) has held as under:-

"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under: "The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".

Cr.R. No.180/2021 From the above discussion it seems well- settled that at the Sections 227-228 stage 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. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

8. Further, in the case of Union of India Vs. Prafulla

Kumar Samal and another (AIR 1979 SC 366), the Hon'ble

Supreme Court again has held as under:-

"Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth- piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the

Cr.R. No.180/2021 case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

9. Further, the Hon'ble Apex Court in the case of State of

Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as

under:-

"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

10. The Hon'ble Apex Court in the case of State of M.P. Vs.

S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has

also held as under:-

"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the

Cr.R. No.180/2021 charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:

"From the above discussion it seems well settled that at the Sections 227-228 stage 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. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (emphasis supplied)

11. Therefore, it is manifest that while framing the charges,

the Court is required to evaluate the material and documents on

record with a view to find out that if the facts emerging therefrom are

taken at their face-value, disclose the existence of all the ingredients

constituting the alleged offence. The accused has no right to produce

any material and deep merits of the case cannot be considered at this

stage. The Court should see only the documents annexed with the

charge-sheet.

12. Now, it is also necessary to read the relevant provisions

of IPC, of which charge is framed against the petitioners. The trial

Cr.R. No.180/2021 Court has framed the charge of offence under Section 306/34 IPC.

Section 306 IPC is reproduced herein 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."

13. Further the "Abetment" is defined under Section 107 of

I.P.C. which reads as under :-

"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."

14. In the case S.S. Chheena Vs. Vijay Kumar Mahajan and

another reported in (2010) 12 SCC 190, the Hon'ble Apex Court has

held as under:-

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

15. Further, The Supreme Court in the case of Praveen

Pradhan vs. State of Uttaranchal, reported in (2012) 9 SCC 734

has held as under:-

Cr.R. No.180/2021 "17. 17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation........

18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC."

16. The Supreme Court in the case of M. Mohan vs. State

represented by the Deputy Superintendent of Police, reported in

(2011) 3 SCC 626 has held as under :-

"44. 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.

45. The intention of the legislature and the ratio of the cases decided by this Court are 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/she committed suicide."

Cr.R. No.180/2021

17. In the instant case, during the investigation, the

statement of mother of deceased Rani Bai Kol, Ghanshyam Kol,

Mukesh Kol, Ganesh Wanshkar, Dinesh Singh Gond, Lallan Gond,

Shahil Pandey and Vijay Kumar Kachhi have been recorded by the

Investigating Officer. It appears from the statements of these

witnesses, present petitioners/accused and some persons were beating

the deceased. Due to this, deceased went to the railway track and

jumped before the train and committed suicide. There is no material

available on the record on which it can be said that before this

incident, petitioners/accused and other person were torturing to the

deceased continuously. So there is no sufficient material to

demonstrate that the petitioners/accused were involved in mental

process of instigating the deceased to commit suicide or they have

intentionally aid the deceased to commit suicide. Occurrence of such

type of incident would not fall under the purview of abetment for

suicide. It may be a cause to commit suicide to the deceased. This is a

matter of causing simple hurt. So it can not be said that

petitioner/accused abetted the deceased to commit suicide.