Madhya Pradesh High Court

Smt. Sangeeta vs The State Of Madhya Pradesh on 28 September, 2021

Author: Rohit Arya

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                                               Cr.Rev.No.1421/2020


                      HIGH COURT OF MADHYA PRADESH
                             BENCH AT INDORE

                            Cr.Rev.No.1421/2020

                      Smt. Sangita W/o Yogendra Mishra

                                     Vs.

                          State of Madhya Pradesh




                                   ORDER

Post for : 28/09/2021

(Rohit Arya) Judge 27/09/2021

Digitally signed by SHAILESH PATIL Date: 2021.09.29 10:27:40 +05'30'

Cr.Rev.No.1421/2020

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

Cr.Rev.No.1421/2020

Smt.Sangita W/o Yogendra Mishra

Vs.

State of Madhya Pradesh

-------------------------------------------------------------------------------- Shri A.K.Saxena, learned counsel for the applicant. Shri Amit Singh Sisodia, Public Prosecutor for the respondent/State.

--------------------------------------------------------------------------------

Reserved on: 09/09/2021

ORDER (28/09/2021)

Rohit Arya, J.,

This criminal revision under Section 397 Cr.P.C.is directed

against charge framed under Section 306/34 of IPC on 15.10.2019

in S.T.No.318/2019 (State of M.P.through Police Station, Sadar

Bazar, Indore Vs. Sangita W/o Yogendra Mishra) against the

applicant Sangita Mishra W/o Yogendra Mishra and her son

Shivam Mishra S/o Yogendra Mishra.

2. Facts relevant for disposal of this revision petition are in

narrow compass; the applicant is a resident of Pratapgarh

(Allahabad). The deceased Anita Shukla D/o Omprakash Shukla,

R/o Flat No.101, Ekvira Apartment, 176, Netaji Subhash Marg,

Near Petrol Pump, Sadar Bazar, Indore was studying in GSITS

College, Indore prosecuting her studies in the course of B.Pharma.

It is alleged that Shivam and Anita were known to each other and

Cr.Rev.No.1421/2020

with the passage of time developed liking for each other. They

were in love affair. Shivam had initially agreed to marry her, but

later on betrayed allegedly due to objection of the present

applicant. Under such circumstances, deceased Anita had

undergone mental tension resulting into commission of suicide on

16.6.2018 by consumption of sulphas tablet; poisonous substance.

Marg No.12/2018 under Section 174 Cr.P.C.was registered

for investigation and the FIR has been registered on 20.11.2018 at

Crime No.394/2018 at P.S., Sadar Bazar, Indore. During

investigation the statement of deceased Anita Shukla was recorded

on 15.6.2020, while she was hospitalized by Shivam Gupta. She

stated that she was in love with Shivam Mishra. They were about

to marry, but as his mother Sangita Mishra did not agree, the

deceased suffered mental tension and accordingly consumed

poison. Her friend Shivam Gupta has brought her to the hospital

for treatment. She has left behind the suicide note at home. Similar

statements have been recorded of her father Omprakash Shukla,

mother Sudha Shukla W/o Omprakash Shukla and brother

Shivpujan S/o Omprakash Shukla etc. Thereafter, suicide note has

also been recovered from the house of the deceased.

3. Shri A.K.Saxena, learned counsel for the applicant, submits

that the ingredients of Sections 107, 108 and 306 IPC defining

abetment of a thing, abettor and abetment of suicide are not

available, even accepting allegations made in the FIR, statements

of witnesses recorded and the suicide note are taken at their face

value, as correct.

Cr.Rev.No.1421/2020

The Court below has not considered

requirements/ingredients of Sections 107, 108 and 306 IPC in the

context of allegations made while framing the charge.

Relying upon the following decisions;

(i) State of Punjab Vs. Iqbal Singh, AIR 1991 SC 1532;

(ii) Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618;

(iii) M.Mohan Vs. State, 2011 Cri.L.J. 1900 (S.C.);

(iv) Chitresh Kumar Chopra Vs. State, (2009) 16 SCC 605;

(v) Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (Suppl.) Cr.L.R.(SC) 261;

(vi) Mahendra Singh & Anr. Vs. State of M.P., (1995) Supp.3 SCC 731;

         (vii) Deepak Vs.           State     of       M.P.,       1994
         Cri.L.J.767 (M.P.);

(viii) Sanju @ Sanjay Singh Sengar Vs. State of M.P., AIR 2002 SC 1998;

(ix) State of U.P.& Anr. Vs. Devendra, (2009) 7 SCC 495;

(x) Manish Dubey Vs. State of M.P.; (2018) (III) MPWN 69;

(xi) Suresh Patel Vs. State of M.P., (2018)(IV) Manish 106 (M.P.);

(xii) Dinesh Vs. State of M.P., (2016)(III) MPWN 103.

learned counsel submits that abetment has defined under Section

107 IPC comprise (i) instigation to do that thing which in an

offence, (ii) engaging in any conspiracy for the doing of that

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things, and (iii) intentionally aiding by any act or illegal omission,

the doing of that thing.

Section 108 defines as abettor that as a person who abets

either the commission of an offence or the commission of an act

which would be an offence. The word "instigate" in the literary

sense means to incite, set or urge on, stir up, goad, foment,

stimulate, provoke, etc. The dictionary meaning of the word "aid"

is to give assistance, help etc. AIR 1991 SC 1232, State of

Punjab Vs. Iqbal Singh.

Learned counsel further submits that to satisfy the

requirement of instigation, though it is not necessary that actual

words must be used to that effect, but what constitutes instigation

must necessarily and specifically be suggestive of the

consequence.

The present case is not a case where the accused-applicant

had by her acts or omission or by the continued course of conduct

created such circumstances that the deceased was left with no

other option except to commit suicide. Merely for the reason the

applicant is alleged to have not agreed for marriage of co-accused

Shivam with the deceased by itself shall not constitute instigation

for abetment to commit suicide. To constitute abetment there

ought to be intention to provoke, incite or encourage of doing of

the act by the accused (2019) 16 SCC 605 Chitresh Kumar

Chopra Vs. State (NCT of Delhi).

Learned counsel further submits that abetment involves a

mental process of instigating a person or intentionally aiding a

Cr.Rev.No.1421/2020

person in doing of a thing. In absence of positive act of the

accused to instigate or aid in committing suicide the ingredients of

abetment of suicide are not fulfilled. With the aforesaid

submissions learned counsel prays for setting aside of the charge.

4. Per contra, Shri Amit Singh Sisodia, learned Public

Prosecutor, opposes the application with the submission that

question of proximity and that of instigation are primarily

questions of fact and can be well addressed only after evidence is

collected during trial. He has relied upon the judgments of the

Hon'ble Supreme Court, Chander Bhan Singh Vs. Central

Bureau of Investigation and others, (2019) 3 SCC 193 and

Balveer Singh and another Vs. State of Rajasthan and Anr.,

2016 SCC Online 481 to bolster his submissions.

5. Heard.

6. Thus, the solitary allegation made against the applicant is

that she did not agree for the marriage of deceased Anita Shukla

with her son co-accused Shivam Mishra. In the FIR, dying

declaration and the statements of parents and Shivam Gupta

recorded under Section 161 Cr.P.C. there is no specific period

mentioned during which communication, if any, was made that

applicant did not agree for marriage of the deceased Anita with co-

accused Shivam to the deceased and to whom and where such

statement was made.

7. The question arises whether such general evasive statement

by itself shall constitute "abetment" as defined under Section 107

of the IPC.

Cr.Rev.No.1421/2020

Abetment as rightly contended by learned counsel for the

applicant must be an act to instigate, provoke, incite or encourage

to do "an act". Besides, abetment involves the mental process of

the accused or in other words an element of mens rea to do such

acts intentionally to push the deceased in such a situation that but

this act of suicide, the deceased did not have any other option

regard being had to her mental state of mind. That apart, such acts

of accused must be direct act with close proximity with the act of

commission of suicide. The Hon'ble Supreme Court in the case of

Chitresh Kumar Chopra Vs. State (NCT of Delhi), (2019) 16

SCC 605 has dealt with the dictionary meaning of "abetment" and

"goading". The Court opined that there should be intention to

provoke, incite or encourage the doing of positive act by the

accused. Sanju @ Sanjay Singh Sengar Vs. State of M.P., AIR

2002 SC 1998 and Madan Mohan Singh Vs. State of Gujrat,

(2010) 8 SCC 628.

8. In view of the settled position of law as regards ingredients

of abetment and an act of abetment to commit suicide as relied

upon by learned counsel for the applicant, even if allegations made

against the applicant are taken at their face value does not disclose

the existence of ingredients for constituting the alleged offence

under Section 306 IPC.

The aforesaid view of this Court is fortified by the judgment

of Hon'ble Supreme Court in the case of Chitresh Kumar Chopta

Vs. State of Govt.of NCT of Delhi), (2009) 16 SC 605. Para 25

and 26 are quoted hereinbelow:-

Cr.Rev.No.1421/2020

"25. It is trite that at the stage of framing of charge, 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 or offences. For this limited purpose, the Court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the Court has to consider the material only with a view to find out if there is ground for "premusing" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya).

26. In Som Nath Thapa, a three Judge Bench of this Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus: (SCC p.671, para 32)

"32. ... if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

(emphasis supplied)

9. Upon perusal of the impugned order, it appears that the trial

Court has not considered the material available on record to

ascertain availability of basic ingredients of the alleged offence

before framing the charge against the applicant. The Court is not

Cr.Rev.No.1421/2020

expected to frame the charge mechanically, but has to exercise its

judicial mind to the given facts of each case as the exercise of

framing of charge is not an empty formality. Charge can be framed

if there are materials showing possibilities about the commission

of crime as against certainty.

10. The sifting of evidence at the stage of framing of charge is

permissible for the limited purpose to find out a prima facie case.

Nevertheless, there has to be application of judicial mind. To

assure dispensation of justice the trial Court must cease to be a

spectator and is required objectively assess that there is a prima

facie material on record to frame the charge.