Jalil Khan vs The State Of Madhya Pradesh
2021 Latest Caselaw 2628 MP

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

                              Cr.R. No.2436/2020

                          Jalil Khan and others

                                        Vs

                                  State of M.P.

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Shri Vijay Kumar Pandey, learned counsel for the petitioners.
Shri Nishant Yadav, learned P.L. for the respondent/State.
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                                   ORDER

(23/06/2021)

Petitioners/accused have filed this criminal revision

under Section 397/401 of Cr.P.C. to set aside the impugned order

dated 05.12.2020, passed by the learned Sessions Judge,

Tikamgarh in Session Trial No. 162/2020, whereby learned

Sessions Judge, Tikarmgarh has framed the charges against the

petitioners/accused for the offence punishable under Section 306

of IPC.

2. As per prosecution case, on 23.08.2020,

deceased/Pappu @ Satar left his house. Thereafter, he committed

suicide by hanging. This fact came to the knowledge of the son of

deceased on 24.08.2020. He informed about alleged incident to

the police. Marg was registered. It is found that Nasreen Bano is

the daughter of deceased. The marriage of Nasreen Bano was

solemnized with petitioner No.2/accused on 01.03.2014.

Cr.R. No.2436/2020

Petitioner No.1/accused is father-in-law of Nasreen Bano. After

the marriage, petitioners/accused humiliated and tortured the

Nasreen Bano. After two month's of the marriage, the

petitioners/accused threw the Nasreen Bano from her

matrimonial house. At that time, she was pregnant. Due to this,

Nasreen Bano was residing in the house of deceased.

Petitioners/accused were humiliating the Nasreen Bano and not

maintaining her. Due to aforesaid reason, the deceased was upset.

On 23.08.2020, petitioners/accused reached at bus stand,

Khargapur where they met deceased. Petitioners/accused

humiliated the deceased and also told her to die.

Petitioners/accused damaged the social reputation of deceased.

They abetted the deceased to commit suicide, due to which she

committed suicide.

3. Learned counsel for the petitioners submits that

petitioners/accused have falsely been implicated in this case.

Actually, the daughter of deceased did not want to reside at her

matrimonial home. So, she voluntarily left the house of

petitioners/accused. Petitioners/accused tried to keep the Nasreen

Bano at her matrimonial home but she refused to live with

petitioner No.2/accused at her matrimonial house. In this regard,

petitioners/accused conducted a Panchayat and also initiated a

proceeding before the Police Paramarsh Kendra, Tikamgarh. But

Nasreen Bano was not agreed to reside with petitioners/accused.

Cr.R. No.2436/2020

On 23.08.2020, petitioners/accused went to the house of

deceased. They wanted to solve the matter mutually as they

desired to keep Nasreen Bano in their house, but Nasreen Bano

refused to do so. Due to this, deceased was in depression.

Petitioners/accused did not commit any offence. There is no

material available on the record on which it can be said that

petitioners/accused abetted the deceased to commit suicide. So

learned trial Court committed grave error in framing the charge

of under Section 306 of IPC against the petitioners/accused.

There is no ingredients of Section 107 of IPC available on the

record on which it can be inferred or said that the

petitioners/accused abetted the deceased to commit suicide. It is

an admitted fact that deceased did not leave any suicidal note.

Learned trial Court did not consider the available material on the

record. Therefore, impugned order is not proper. On these

grounds learned counsel for the petitioners prays for setting aside

the impugned order dated 05.12.2020 and petitioners/accused be

discharged from the Section 306 of IPC.

4. It is evident from the record that learned trial judge

framed the charges against the petitioners-accused under Section

306 of IPC, so it must be seen that what is the evidence against

the petitioners-accused. Before entering into merits of the matter,

I would prefer read the relevant Sections under the Code

Cr.R. No.2436/2020

regarding framing of charges. Section 227 of Code Of Criminal

Procedure, 1973 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"

Section 228 of Code Of Criminal Procedure, 1973 also

reads 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."

5. Hon'ble Supreme Court in the case of Niranjan

Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj

Bijja and others reported in AIR 1990 SC 1962 has held as

under:-

"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 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 rounded upon materials before the Magistrate which leads him to form a presumptive

Cr.R. No.2436/2020 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".

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."

6. Further, the Hon'ble Supreme Court again in the case

of Union of India Vs. Prafulla Kumar Samal and another

reported in AIR 1979 SC 366 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 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."

Cr.R. No.2436/2020

It is evident from the above referred case laws that

there must be prima-facie material available, on which charge can

be framed.

7. It is evident from the record that petitioner-accused

No. 1 is father of son-in-law of deceased wheres petitioner No. 2

is son-in-law of deceased. After marriage petitioners-accused

lived sometimes with daughter of deceased and thereafter on

account of some family dispute, she came to her parental house

near to her father/deceased. It is admitted that there is dispute

between the daughter of deceased and petitioner-accused No. 2.

The petitioners tried to resolve their dispute by way of availing

appropriate remedy but daughter of deceased was not ready to

live with them. Allegation against the petitioners/accused is that

they tortured and humiliated the daughter of deceased due to

which the deceased was in depression. They also told the

deceased to commit suicide due to which being upset from the

behavior of the petitioners, he committed suicide. Petitioner-

accused submits that on account of his daughter's behavior, the

deceased was in depression and committed suicide. The Hon'ble

Apex Court dealt with the similar issue in the case of M.Mohan

vs. State represented by the Deputy Superintendent of Police

reported in (2011) 3 SCC 626.

Cr.R. No.2436/2020 "36. We would like to deal with the concept of

'abetment'. Section 306 of the Code deals with 'abetment

of suicide' 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 extent to ten years, and shall also be liable to fine."

37. The word 'suicide' in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation.`Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

38. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of I.P.C.

39. Abetment of a thing' has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing.'' Explanation 2 which has been inserted along with section 107 reads as under:

"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."

40. The Learned counsel also placed reliance on yet another judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, in which a three- Judge Bench of this court had an occasion to deal with the case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide.

41.This Court in SCC para 20 of Ramesh Kumar (2001) 9 SCC 618: 2002 SCC(Cri) 1088 has examined different shades of the meaning of "instigation'.

Cr.R. No.2436/2020 Para 20 reads as under:(SCC p. 629) "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."

In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn.

42. In State of West Bengal v. Orilal Jaiswal (1994) SCC (Cri) 107, this Court has cautioned that (SCC p. 90, para 17), 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 appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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.

43. This court in Chitresh Kumar Chopra v. State (Govt.of NCT of Delhi) 2009 (16) SCC 605: (2010)3 SCC (Cri) 367, had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self- esteem and self-respect.Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

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

Cr.R. No.2436/2020 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."

8. The Hon'ble Apex Court dealt with the similar issue

in the case of of Sanju Vs. State of M.P. Reported in (2002) 5

Supreme Court Cases 371 also is as under:-

"8. In Swamy Prahaladdas v. State of M.P. & Anr . , 1995 Supp. (3) SCC 438: 1995 SCC (Cri) 943, the appellant was charged for an offence under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die' . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

9. In Mahendra Singh v. State of M.P ., 1995 Supp.(3) SCC 731: 1995 SCC (Cri) 1157, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads as under: (SCC p. 731, para 1) "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

10. This Court, considering the definition of 'abetment' under Section 107 I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

11. In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself

Cr.R. No.2436/2020 and had set fire. Acquitting the accused this Court said: (SCC p.620) "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 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 for abetting the offence of suicide should be found guilty."

9. The Hon'ble Apex Court dealt with the similar issue

in the case of of S.S. Chhena Vs. Vijay Kumar Mahajan and

another reported in (1995) M.P.L.J. 458 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 mensrea 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.

26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.

27. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside."

Cr.R. No.2436/2020

10. The Hon'ble Supreme Court in the case of Rajesh

Vs. State of Harayana delivered in Criminal Appeal No.

93/2019 on 18th January, 2019 has held as under:-

"9. The term instigation under Section 107 IPC has been explained in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi2) 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 (2010) 1 SCC 707 (2009) 16 SCC 605: (2010) 3 SCC (Crl.) 367 "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. 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 irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.)."

10. Words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (See Praveen Pradhan v. State of Uttaranchal 3).

11. We are of the opinion that the evidence on record does not warrant conviction of the Appellant under Section 306 IPC.

There is no proximity between the Panchayat held in September, 2001 and the suicide committed by Arvind on 23.02.2002. The incident of slapping by the Appellant in September, 2001 cannot be the sole ground to hold him responsible for instigating the deceased to commit (2012) 9 SCC 734 suicide. As the allegations against all the three accused are similar, the High Court ought not to have convicted the Appellant after acquitting the other two accused.

Cr.R. No.2436/2020

12. We are not in agreement with the findings of the Trial Court that the deceased (Arvind) committed suicide in view of the continuous threats by the accused regarding his being implicated in a false case of demand of dowry. The evidence does not disclose that the Appellant instigated the deceased to commit suicide. There was neither a provocation nor encouragement by the Appellant to the deceased to commit an act of suicide. Therefore, the Appellant cannot be held guilty of abetting the suicide by the deceased."

11. In the instant case, it is evident that Nasreen Bano is

the daughter of deceased. The marriage of Nasreen Bano was

solemnized with petitioner No.2/accused on 01.03.2014.

Petitioner No.1/accused is the father-in-law of deceased. It is also

admitted fact that at the time of incident, Nasreen Bano was

residing at her parental house, deceased is the father of Nasreen

Bano. Nasreen Bano is the mother of one child. It is also

admitted fact that there is dispute between both the parties.

Petitioners/accused have filed some documents on which prima

facie it can be said that petitioners/accused are interested to keep

Nasreen Bano at her matrimonial house. During the investigation,

the statement of the son of deceased, Sakeel, wife of deceased

Aktari Bano, daughter of deceased Nasreen Bano, niece of

deceased Mohd. Shahjad, brother of deceased Azad and Ayush

Khan were recorded by the Investigating Officer. It appears from

the statements of witnesses, there was a dispute between Nasreen

Bano and petitioner No.2/accused. Nasreen Bano was residing at

her parental house with her son. To resolve the dispute, a

Panchayat was also conducted. Due to aforesaid reason, the

Cr.R. No.2436/2020

deceased was upset and worried about the future of her daughter

Nasreen Bano. On 23.08.2020, petitioners/accused reached there.

It is alleged by the prosecution that petitioners/accused want to

keep the daughter of deceased and went to take back the Nasreen

Bano where they insulted the deceased and also told him to die.

Even if this material is accepted as truthful, it suggests some

undesirable incident was occurred on 23.08.2020 but it does not

appear from the record that petitioners/accused had intention or

any kind of motive to abet the deceased to commit suicide. It

appears that there is a domestic dispute between both the parties.

Nasreen Bano is the wife of petitioner No.2/accused. If petitioner

No.2/accused was not maintaining her and her child then

Nasreen Bano has right to get the maintenance to the petitioner

No.2/accused. She can approach the Court in this regard.

Although petitioners/accused initiated the proceeding before

Pariwar Paramarsh Kendra to keep Nasreen Bano at her

matrimonial house and on 20.08.2019, deceased or her family

members did not lodge any report against the petitioners/accused.

Deceased did not leave any suicidal note. So, it appears that

deceased was in depression. Due to this he committed suicide. In

the case of Swamy Prahaladdas(supra), it has been held by the

Hon'ble Supreme Court that words uttered by the accused to the

deceased 'to go and die' will not prima facie enough to instigate

the deceased to commit suicide. Prima facie, there is no material

Cr.R. No.2436/2020

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

petitioners/accused abetted the deceased to commit suicide. Thus,

the aforesaid discussion, it appears that the petitioners/accused

did not instigate the deceased to commit suicide. Therefore,

framing the charge under Section 306 of IPC appears to be

erroneous and the impugned order is liable to be set aside.

12. Hence, the petition is allowed and impugned order

dated 05.12.2020, in ST No. 162/2020 passed by the learned

Sessions Judge, Tikamgarh is hereby quashed. The petitioners are

discharged from the offence of Section 306 IPC.

(Rajendra Kumar Srivastava) Judge

L.R.

Digitally signed by LALIT SINGH RANA Date: 2021.06.26 17:11:55 +05'30'