Satish Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 6267 MP

                                                       1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                            ON THE 19 th OF APRIL, 2023
                                        CRIMINAL REVISION No. 1529 of 2023

                          BETWEEN:-
                          1.    SATISH TIWARI S/O SHRI RAMPRAKASH TIWARI,
                                AGED ABOUT 40 YEARS, VILLAGE NAGOR P.S.
                                ENDORI DISTRICT BHIND (MADHYA PRADESH)

                          2.    [email protected]     TIWARI   S/O    SHRI
                                RAMPRAKASH TIWARI, AGED ABOUT 28 YEARS,
                                VILLAGE NAGOR PS ENDORI DISTRICT BHIND
                                (MADHYA PRADESH)

                          3.    SMT. SEEMA TIWARI W/O SHRI SATISH TIWARI,
                                AGED ABOUT 30 YEARS, VILLAGE NAGOR PS
                                ENDORI DISTRICT BHIND (MADHYA PRADESH)

                          4.    AKASH UPADHYAY @ BHOLU UPADHYAY S/O SHRI
                                SALIGRAM UPADHYAY, AGED ABOUT 20 YEARS,
                                VILLAGE KHANETA PS ENDORI DISTRICT BHIND
                                (MADHYA PRADESH)

                          5.    SALIGRAM UPADHYAY S/O SHRI BHOGIRAM
                                UPADHYAY, AGED ABOUT 50 YEARS, VILLAGE
                                KHANETA PS ENDORI DISTRICT BHIND (MADHYA
                                PRADESH)

                          6.    SMT. SUNITA UPADHYAY W/O SHRI SALIGRAM
                                UPADHYAY, AGED ABOUT 45 YEARS, VILLAGE
                                KHANETA PS ENDORI DISTRICT BHIND (MADHYA
                                PRADESH)

                                                                              .....PETITIONER
                          (MS. AYUSI VYAS, ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH INCHARGE POLICE
                          STATION THROUGH POLICE STATION GOLE KA
                          MANDIR, GWALIOR (MADHYA PRADESH)

                                                                            .....RESPONDENTS
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 4/19/2023
5:46:17 PM
                                                        2
                          (SHRI G.S. CHAUHAN, PUBLIC PROSECUTOR)

                                This revision coming on for admission this day, th e court passed the
                          following:
                                                             ORDER

This criminal revision has been preferred by the petitioners for quashing the charges framed against them under Section 306/34 of IPC vide order dated 13.03.2023 passed in S.T. No.99/2023 by Tenth Additional Sessions Jude Gwalior (M.P.).

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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 and her family members thereafter pressurized the deceased for transferring the ownership of entire house in the name of Shivani, due to which he consumed some poisonous substance and committed suicide. Enquiry officer was 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 including petitioners. Matter was investigated. Statements of witnesses were recorded.

Learned counsel for the petitioners submitted that after death of deceased Rahul Merg was enquired for ten days in which statements of the witnesses were also recorded. Subsequently, after two and half months statement of Nawal Kishore was recorded, in which he alleged that during Panchayat co- accused Ladli Mohan Swami Sharma 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

petitioners. Learned counsel for the petitioners have relied upon 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 petitioners have 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 petitioners Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

have 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 has opposed the submission so advanced by the petitioners and prayed for rejection of this criminal revision.

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 act, and thereby facilitates the commission thereof, is said to aid the doing of that act.'Â​

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

Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 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 and had set fire. Acquitting Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 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.

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17. Thus, to constitute instigation™, a person who instigates Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he 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 œinstigate 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that 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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 therewith. No doubt that the word œinstigate used in Section 107 IPC has been explained by this Court in Ramesh 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.'' Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM

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 petitioners have instigated the deceased to commit suicide. Petitioners being the relatives of wife of the deceased 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 petitioners in any manner has abetted the deceased to commit suicide. Accordingly, charges framed against the petitioners under Section 306/34 of IPC vide order dated 13.03.2023 passed in S.T. No.99/2023 by Tenth Additional Sessions Jude Gwalior (M.P.) are quashed so far as it relates to the petitioners and petitioners are discharged. This criminal revision is accordingly allowed.

(DEEPAK KUMAR AGARWAL) JUDGE ojha

Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/19/2023 5:46:17 PM