Madhya Pradesh High Court

Saurabh Gupta vs The State Of Madhya Pradesh on 29 March, 2023

Author: Deepak Kumar Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 29 th OF MARCH, 2023
MISC. CRIMINAL CASE No. 13494 of 2022

BETWEEN:-
1. DR. MURARILAL GUPTA @ M L GUPTA S/O LT.
VISHVNATH GUPAT, AGED ABOUT 66 YEARS,
OCCUPATION: RETIRED RESIDENT OF 9/5
ANUPAM NAGAR UNIVERSITY ROAD, GWALIOR
(MADHYA PRADESH)

2. SHAILY GUPTA W/O LT. SHRI DR. GAURAV
KUMAR GUPTA D/O SHRI DR. M.L. GUPTA, AGED
ABOUT 33 YEARS, OCCUPATION: HOUSEWIFE
RESIDENT OF 9/5 ANUPAM NAGAR UNIVERSITY
ROAD, GWALIOR (MADHYA PRADESH)

3. NEHA RUSIYA W/O SHRI GAURAV KUMAR
RUSIYA, AGED ABOUT 39 YEARS, OCCUPATION:
HOUSEWIFE RESIDENT OF FLAT NO. B-9 903
TAWAR NOB9 GARDINIYA GLORY SECTOR 46
NOIDA GAUTAMBUDDH NAGAR U.P. (UTTAR
PRADESH)

.....PETITIONERS
(SHRI RAJ KUMAR SHRIVASTAVA AND SHRI VIJAY KUMAR JHA
LEARNED COUNSEL FOR THE PETITIONERS)

AND
1. THE STATE OF MADHYA PRADESH INCHARGE
POLICE STATION P.S KAMPOO, LASHKAR,
GWALIOR (MADHYA PRADESH)

2. SAURABH KUMAR GUPTA S/O LT. SHRI OM
PRAKASH GUPTA, AGED ABOUT 39 YEARS,
RESIDENT OF FLAT NO. 312 TRIVENI
APRATMENT PATEL NAGAR CITY CENTER
GWALIOR (MADHYA PRADESH)

.....RESPONDENTS
( SMT. PADAMSHRI AGRAWAL - LEARNED COUNSEL FOR THE
RESPONDENT NO.1- STATE AND SHRI ADITYA DIXIT, LEARNED
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/1/2023
1:04:01 PM
2
COUNSEL FOR THE RESPONDENT NO.2)
AND
MISC. CRIMINAL CASE No. 35529 OF 2022
SAURABH GUPA, SON OF LATE SHRI OMPRAKASH
GUPTA, AGED 35 YEARS, RESIDENT OF 132,
TRIVENI APARTMENT, PATEL NAGAR,
CITY CENTRE, GWALIOR (MADHYA PRADESH)
------- PETITIONER
(SHRI ABHISHEK PARASHAR- LEARNED COUNSEL FOR THE
PETITIONER)
AND
1. POLICE SUPERINTENDENT, GWALIOR,
DISTRICT GWALIOR
2. POLICE IN-CHARGE, POLICE STATION
KAMPOO, DISTRICT GWALIOR (MADHYA PRADESH)
----RESPONDENTS
(SMT. PADMSHRI AGRAWAL- LEARNED COUNSEL FOR THE
RESPONDENTS- STATE)

Both the petitioners coming on for HEARING this day, the court passed

the following:
ORDER

Since the facts of both petitions are same, therefore, petition filed by brother of deceased, namely, Saurabh Gupta (in MCRC No.35529 of 2022) shall also govern disposal by this common order.

(2) Petition preferred by petitioners (MCRC 13494 of 2022) under Section 482 of Cr.P.C for quashment of FIR vide Crime No. 501 of 2021 registered at PS Kampoo, Lashkar, Gwalior for commission of offence under Section 306 r/w 34 of IPC as well as for quashment of other subsequent criminal proceedings arising out of aforesaid Crime, pending before the Court below.

(3) Petition has filed by Saurabh Gupta i.e. MCRC 35529 of 2022 seeking a direction to police authorities for conduction of free and fair investigation in the matter and thereafter, file charge sheet/closure report/ final report before the competent Court.

(4) As per prosecution case, it is alleged that on 30-08-2021 at about Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM

12:00 in the night, Dr. Gaurav Gupta was in the chamber of his Hospital namely Anmol Hospital and told nursing staff that he will stay in his chamber. When on 31-08-2021 at about 08:00 in the morning, the staff went to his chamber to serve him tea, found that the body of Dr. Gaurav Gupta was not moving and his pulse was checked by which, it was found that he was not alive. On suspicious, it was opined by doctor that he has committed suicide by taking some poisonous substance i.e. by means of taking anesthesia injection as as per postmortem report, it was opined by the doctor that the deceased was died due to cardio- respiratory failure. During enquiry, the police collected two page suicide note written by Shri Gaurav Gupta in English on the letter head of Anmol Hospital who has alleged against his father-in-law Dr. Muralilal Gupta (petitioner no.1 in MCRC 13494 of 2022) and two other co-accused persons, namely, Shaily Gupta and Neha Rusiya (herein petitioners no.2 and 3). On the basis of merg intimation, Crime No. 501 of 2021 for offence under Section 306 read with Section 34 of IPC was registered. Matter was investigated. Meanwhile, petitioner no.2 (who is in MCRC 13494 of 2022) filed an application before the SP concerned on 25-02-2022 for conduction of free and fair investigation but no proper step was taken. Before commission of suicide, a divorce petition on the ground of cruelty was filed by Neha Rusiya (herein respondent no.2) on the basis of mutual consent and the deceased was undergoing mental disability.

(5) It is contended by learned counsel appearing for petitioners (MCRC No. 13494 of 2022) that prima facie facts and evidence as adduced by prosecution in the case at hand, no offence under Section 306 of the IPC is made out against petitioners as there is no direct evidence available on record to show that they, in any manner, instigated, aided or provoked deceased to

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commit suicide. Learned counsel for petitioners has 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 petitioners have not committed any willful act or omission or intentionally aided or instigated deceased in committing the act of suicide. There is no case that petitioners have played any part or any active role in any conspiracy which ultimately instigated or resulted in commission of suicide by deceased. There is no direct evidence in regard to instigation having a direct nexus to suicide committed by deceased. The deceased as a patient of mental disability. Even if it is believed that deceased being sane and capable to take the decision to commit a suicide, petitioner no.2 and deceased have already filed a divorce petition on the basis of mutual consent, therefore, no involvement of petitioners can be made out for commission of aforesaid alleged offence. It is further submitted that there must be an allegation of either direct or indirect act of incitement to commission of offence of suicide and mere allegation of harassment of deceased by another person would not be sufficient in itself, unless there are allegations of such actions on the part of petitioners which compelled commission of suicide by deceased. Petitioner no.2 filed a complaint of cruelty in regard to demand of dowry against deceased should not be considered as a ground against petitioners in regard to suicide committed by deceased.

(6) Learned counsel for the State as well as Shri Parshar, learned counsel appearing for the petitioner- complainant in MCRC 35529 of 2022 has opposed submissions so advanced on behalf of petitioners by submitting that at this stage, no interference is warranted. It is submitted that the police authorities should investigate the matter in free and fair manner as well as Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM

impartially so that the real truth may come in after completion of investigation. Hence, prayed for dismissal of petition filed by petitioners- accused.

(8) Heard learned counsel for the parties and perused the record as well as charge sheet and the statements of witnesses.

(9) 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.

(10) The term 'abetment' has been defined in Section 107 ofIPC, 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.

(11) As Section 306 of IPC makes abetment of commission of suicide Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM

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.

(12) In the matter of Sanju alias Sanjay Singh Sengar vs. State of MP, (2002) 5 SCC 371, the Hon'ble Apex Court in paragraphs 10 to 11 has observed as under:-

''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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM

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 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."

(13) 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 ''Âœinstigation'' held as under :-

''Âœ16. ...."instigation is to goad, urge forward, provoke, incite or encourage to do Â˜an act. To satisfy the requirement of Â˜instigation, though it is not necessary that actual words must be used to that effect or what constitutes Â˜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 Â˜instigation may have to be inferred.

A word uttered in a fit of anger or emotion without intending the

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consequences to actually follow, cannot be said to be instigation.

17. Thus, to constitute Â˜instigation, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'Â˜goadingÂ™ or 'Â˜urging forward'. The dictionary meaning of the word 'Â˜goad is Â˜a thing that stimulates someone into action; provoke to action or reaction' to keep irritating or annoying somebody until he reacts .....'' (14) 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:-

''Âœ6. 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 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. 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.'' (15) In the matter of Gangula Mohan Reddy Vs. State of A.P.

reported in (2010) 1 SCC 750, Hon'ble Apex Court has held as under: Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM

''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 - In order to convict a person under section 306 IPC, there has to be a clear mens rea to commit offence -Â" 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--- Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under Section 306 made out -Ã‚Â" Hence, appellant's conviction, held unsustainable''Â.

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

''Âœ12. 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

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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.

14. The expression ''Â˜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.

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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:

ÂœExplanation 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.

16. 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.'' (17) 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

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not. It is a tentative view that the Court forms on the basis of record and documents annexed therewith. No doubt that the word Âœinstigate 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.'' (18) 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 FIR and statements of witnesses are taken as it is, even then it cannot be said that the petitioners have instigated deceased to commit suicide.

(19) 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 the petitioners, in any manner, have abetted deceased to commit suicide. Accordingly, quashment of FIR vide Crime No. 501 of 2021 registered at Police Station Kampoo, Lashkar, Gwalior for commission of offence under Section 306 read with Section 34 of IPC as well as for quashment of Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM

consequential criminal proceedings arising out of aforesaid Crime, pending before the Court below is quashed so far as it relates to petitioners and they are discharged from the aforesaid offence accordingly. Petition filed by petitioners i.e. MCRC 13494 of 2022 stands allowed. As a consequence thereof, petition i.e. MCRC No.35529 of 2022 filed by Saurabh Gupta (brother of deceased) seeking direction to police authorities for conduction of free and fair investigation in the matter and file final report/closure report/ charge sheet in the matter, fails and is hereby rejected in the light of order passed today itself in MCRC No.13494 of 2022.

A copy of this order be placed in connected MCRC 35529 of 2022 and so also sent to police station concerned as well as Court below for necessary information and compliance.

CC as per rules.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM