Ladli Mohan Swami Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 5806 MP

                                                      1
                 IN         THE      HIGH COURT OF MADHYA PRADESH
                                           AT GWALIOR
                                              BEFORE
                           HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                          ON THE 11 th OF APRIL, 2023
                                   MISC. CRIMINAL CASE No. 55579 of 2022

               BETWEEN:-
               LADLI MOHAN SWAMI SHARMA S/O LATE SHRI
               PARMANAND SWAMI SHARMA, AGED ABOUT 59
               YE A R S , OCCUPATION: AGRICULTURIST R/O VILL.
               MORENA GAON CIVIL LINE DISTT. MORENA (MADHYA
               PRADESH)

                                                                                 .....PETITIONER
               (BY SHRI VIJAY DUTTA SHARMA- ADVOCATE )

               AND
               1.          THE STATE OF MADHYA PRADESH THROUGH
                           POLICE STATION GOLA KA MANDIR DISTT.
                           GWALIOR (MADHYA PRADESH)

               2.          RAMKUMAR SHARMA S/O LATE SHRI BHURELAL
                           SHARMA, AGED ABOUT 39 YEARS, OCCUPATION:
                           PRIVATE JOB R/O SAI CITY, JADERUA BANDHA,
                           SAI CITY, MORAR, DISTT. GWALIOR (MADHYA
                           PRADESH)

                                                                               .....RESPONDENTS
               (BY SHRI VIRENDRA PAL- PUBLIC PROSECUTOR FOR RESPONDENT
               NO.1/STATE
               BY SHRI DIBYANG DEV SHARMA- ADVOCATE FOR RESPONDENT NO.2)

                           This application coming on for hearing this day, the court passed the
               following:
                                                       ORDER

This petition has been preferred by the petitioner under Section 482 of Cr.P.C. for quashing of charge-sheet arising out of crime No.434/2022 Signature Not Verified registered at police Station, Gole Ka Mandir, Distt. Gwalior, under Section Signed by: MADHU SOODAN PRASAD Signing time: 12-04-2023 11:06:56 AM 306/34 of IPC and its subsequent criminal proceedings registered as RCT

No.6422/2022.

In brief facts of the case are that on 3.7.2022 Ramkumar Sharma gave an information at police Station, Gole Ka Mandir, Gwalior, along with his brother Dheeraj Sharma that in the evening at 4.15 pm Banti Sharma, who is his cousin, telephoned him that Rahul Sharma son of Bhairolal Sharma resident of Kunj Bihar Colony has consumed some poisonous substance and lying in unconscious state. Thereafter he reached Birla Hospital where his brother Rahul Sharma was admitted for treatment. During treatment, on the same day he died. On his information, Merg No.29/2022 was recorded. Dead-body Panchnama was prepared. Thereafter dead-body was sent for postmortem. As per

postmortem report, he died due to consumption of poisonous substance within 6-24 hours. Viscera was preserved for chemical examination. Merg was enquired by ASI Ranveer Singh and he submitted a Merg enquiry report to this effect that from the place of occurrence a suicide note written by deceased Rahul Sharma was seized and statements of his brother and relatives were recorded in which they have stated that earlier wife of Rahul namely Shivani and her family members lodged a report under Sections 307, 498-A of IPC and Sections 3/4 of the Dowry Prohibition Act against deceased Rahul and his family members in which whole family was arrested. For compromising the said case, Shivani and her family members pressurized them and thereafter Shivani got half share of the house. Afterwards Shivani changed her statement to the effect that she accidentally fell from the roof. After recording of her statement, deceased and his family members were acquitted from the said case. Shivani

Signature Notand her family members thereafter pressurized the deceased for transferring the Verified Signed by: MADHU SOODAN PRASAD ownership of entire house in the name of Shivani, due to which he consumed Signing time: 12-04-2023 11:06:56 AM

some poisonous substance and committed suicide. Enquiry officer is of the opinion that offence under Section 306/34 of IPC is made out. After submission of the enquiry report, Crime No.434/2022 has been registered at police Station Gole Ka Mandir, Distt. Gwalior under Sections 306/34 of IPC against 12 accused persons, but not against the petitioner. Matter was investigated. During investigation, after about two and half months statement of Nawal Kishore Sharma was recorded in which he has alleged that when deceased and his family members were on bail in the case under Section 307 of IPC, petitioner, who is Mausa of Shivani, along with other co-accused called them to Dindayal Nagar where Panchayat was organized in which petitioner and other co-accused put a condition that they will get them acquitted only when they will transfer the ownership of their ancestral house in the name of Shivani. Thereafter petitioner has been implicated in the case as an accused.

Learned counsel for the petitioner submitted that after death of deceased Rahul Merg was enquired for ten days in which statements of the witnesses were also recorded, but no witness alleged that petitioner has abetted the deceased to commit suicide. Subsequently, after two and half months statement of Nawal Kishore was recorded, in which he alleged that during Panchayat petitioner along with other accused put a condition of transferring the ownership of ancestral house of the deceased in the name of Shivani for compromising the

matter. It is submitted that on these allegations, prima facie no offence under Section 306 of the IPC is made out against the petitioner. Petitioner being Mausa of the deceased during Panchayat only supported the demand of family members of the deceased, that does not mean that petitioner has instigated the Signature Not Verified deceased to commit suicide. Learned counsel for the petitioner has relied upon Signed by: MADHU SOODAN PRASAD Signing time: 12-04-2023 11:06:56 AM the judgments passed by the Apex Court in the case of Netai Dutta Vs. State

of West Bengal [(2005) 2 SCC 659] and Sanju @ Sanjay Singh Sengar Vs. State of M.P. [(2002) 5 SCC 371] and contended that the petitioner has not committed any willful act or omission or intentionally aided or instigated the deceased in committing the act of suicide. There is no case that the petitioner has played any part or any role in any conspiracy which ultimately instigated or resulted in the commission of suicide by deceased.

Learned counsel for the State as well as respondent No.2 has opposed the submission so advanced by the petitioner and submitted that in the suicide note also deceased alleged against the petitioner.

Heard learned counsel for the parties and perused the record. Section 306 of IPC reads as under:-

"Section 306. 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.' The 'abetment' has been defined in Section 107 of the IPC, which reads as under:-

"Section 107. 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.

Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that Signature Not Verified Signed by: MADHU act, and thereby facilitates the commission thereof, is said to Signing time: 12-04-2023 aid the doing of that act.'Â​ SOODAN PRASAD 11:06:56 AM

A s Section 306 of IPC makes abetment of commission of suicide punishable, therefore, for making a person liable for an offence punishable under Section 306 IPC, it is a duty of the prosecution to establish that such person has abetted the commission of suicide and for the purpose of determining the act of the accused, it is necessary to see that his act must fall in any of the 3 categories as enumerated under Section 107 of the IPC and, therefore, it is necessary to prove that the said accused has instigated the person to commit suicide or must have engaged with one or more other persons in any conspiracy for seeing that the deceased commits suicide or he must intentionally act by any act or illegal omission, of the commission of suicide by the deceased.

In Sanju alias Sanjay Singh Sengar vs. State of MP, (2002) 5 SCC 371, the Hon'ble Apex Court in paragraphs 9 to 11 has observed as under:-

"9. In Mahendra Singh v. State of M.P., 1995 Supp.(3) SCC 731, 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:

"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-inlaw. 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 Signature Not Verified Signed by: MADHU attracted on the statement of the deceased.

SOODAN PRASAD Signing time: 12-04-2023 11:06:56 AM 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 and had set fire. Acquitting the accused this Court said:

"A word uttered in a fit of anger or emotion without intending t h e 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."

In case of Parveen Pradhan v. State of Uttaranchal, [2012 (1) JT 478], it is observed that 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 been abetted. Abetment may be by instigation, conspiracy or intentional aid as provided under section 107 of the Code. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation.

The Hon'ble Apex Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605 while dealing with the term instigationÂ​ held as under :-

16. ... 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 Signature Not Verified Signed by: MADHU must necessarily and specifically be suggestive of the Signing time: 12-04-2023 consequence. Yet a reasonable certainty to incite the SOODAN PRASAD

consequence must be capable of being spelt out. Where the 11:06:56 AM

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 to keep irritating or annoying somebody until he reacts....' In State of W.B. Vs. Orilal Jaiswal, reported in 1994 (1) SCC 73, the Hon'ble Apex Court has held as under:-

' ÂœThis 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 the life by committing suicide. If it appears 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 that accused charged of abetting the offence of suicide should be found guilty'.

The Hon'ble Apex Court in Kishori Lal vs. State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:-

' œ6. Section 107 IPC defines abetment of a thing. The Signature Not Verifiedoffence of abetment is a separate and distinct offence provided Signed by: MADHU SOODAN PRASAD in IPC. A person, abets the doing of a thing when (1) he Signing time: 12-04-2023 11:06:56 AM instigates any person to do that thing; or (2) engages with one

or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word ÂœinstigateÂ​ literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. Abetted in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.' I n Gangula Mohan Reddy Vs. State of A.P. reported in (2010) I SCC 750, Hon'ble Apex Court has held as under:

'Âœabetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained.Â" In order to convict a person under section 306 IPC, there has to be a clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide Also, reiterated, if it appears to Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty.Â" Herein, deceased Signature Not Verifiedwas undoubtedly hypersensitive to ordinary petulance, discord Signed by: MADHU SOODAN PRASAD circumstances of case, none of the ingredients of offence under Signing time: 12-04-2023 11:06:56 AM Section 306 made out.Â" Hence, appellant's conviction, held

unsustainable'.

In Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme Court has held as under:-

' œ12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.

1 4 . The expression ˜abetment™ has been defined under Section 107 IPC which we have already extracted above.A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of Signature Not Verified abetment then the offender is to be punished with the Signed by: MADHU punishment provided for the original offence. Learned counsel SOODAN PRASAD Signing time: 12-04-2023 for the respondent State, however, clearly stated before us that 11:06:56 AM

it would be a case where clause ˜thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.

15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows: 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 facilitates the commission thereof, is said to aid the doing of that act.' 1 6 . Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC.' The Supreme Court in the case of Amit Kapur Vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :

'

'35. The learned counsel appearing for the appellant has relied upon the judgment of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009) 16 SCC 605 to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the accused. It is not the stage for us to consider or evaluate or marshal the records for the purposes of determining whether the offence under these provisions has been committed or not. It is a tentative view that the Court forms on the basis of record and documents annexed Signature Not Verifiedtherewith. No doubt that the word œinstigate used in Signed by: MADHU SOODAN PRASAD Section 107 IPC has been explained by this Court in Ramesh Signing time: 12-04-2023 11:06:56 AM Kumar v. State of Chhattisgarh ((2001) 9 SCC 618) to say that

where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, an instigation may have to be inferred. In other words, instigation has to be gathered from the circumstances of the case. All cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue existence.'' Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act.

In the present case, even if the allegations as contained in suicide note as well as in the statement of witness Nawan Kishore are taken as it is, even then it cannot be said that petitioner has instigated the deceased to commit suicide. Petitioner being the relative of Shivani has attended the Panchayat from the side of Shivani and supported her claim during Panchayat, but that does not mean that he instigated the deceased to commit suicide.

Thus, considering the totality of the facts & circumstances of the case, this Court is of the considered opinion that prima facie there is no material to show that petitioner in any manner has abetted the deceased to commit suicide. Accordingly, charge-sheet arising out of crime No.434/2022 registered at police Station, Gole Ka Mandir, Distt. Gwalior, under Section 306/34 of IPC and its subsequent criminal proceedings registered as RCT No.6422/2022 are quashed so far as it relates to the petitioner and petitioner is discharged. This petition is Signature Not Verified accordingly allowed.

Signed by: MADHU SOODAN PRASAD Signing time: 12-04-2023 11:06:56 AM

(DEEPAK KUMAR AGARWAL) JUDGE ms/-

Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 12-04-2023 11:06:56 AM