Madhya Pradesh High Court

Mohan vs The State Of M.P. on 31 October, 2023

Author: Anil Verma

                                            1


        IN THE HIGH COURT OF MADHYA PRADESH
                                   AT INDORE
                                      BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA
                      ON THE 31st OF OCTOBER, 2023
                    CRIMINAL APPEAL No. 133 of 2000

     BETWEEN:-
     MOHAN S/O KISHAN BHILALA,
     AGED ABOUT 27 YEARS,
     R/O: DABHAD, P.S. DHARAMPURI,
     DISTRICT DHAR (M.P.)
                                                                      .....APPELLANT
     (BY SHRI SHIVENDRA SINGH RAWAT - ADVOCATE)


     AND
     STATE OF MADHYA PRADESH
     THROUGH P.S. DHARAMPURI,
     DISTT. DHAR (M.P.)
                                                               .....NON APPLICANT

     (BY SHRI A.S. PARIHAR - PANEL LAWYER)
-----------------------------------------------------------------------------------------
      This appeal coming on for hearing this day, the court passed the
following:

                                    JUDGMENT

1. The appellant has referred this Criminal Appeal against the impugned judgment of conviction dated 21.1.2000 passed by the 1 st ASJ, Dhar (M.P.) in S.T. No.184/1999, whereby the appellant Mohan has been convicted for the offence under Section 306 of Indian Penal

Code (in short "IPC") and sentenced to undergo 5 years R.I. with fine of Rs.1,000/-, with usual default stipulation.

2. prosecution story, in brief, is that prior to the incident appellant Mohan along with Kailash threatened the deceased Dinesh that you have stolen Rs.10,000/- from the shop of the appellant and if you will not return the money, we will kill you. Thereafter they took the deceased with them. Due to the fear and threat given by the appellant, during 2-4 days Dinesh has consumed some poisonous substance in his house and due to which he has been died. After the Merg inquiry, offence has been registered against the appellant Mohan and co-accused Kailash. Postmortem of the deceased was conducted by Dr. Mohan Gupta (PW-7) and he opined that some poisonous substance has been found inside the stomach of the deceased, but he could not determine the cause of death. Viscera of the deceased was sent to the FSL, Sagar for its chemical examination and as per the FSL report, Organophosphorus pesticide has been found in the viscera of the deceased. Accordingly offence has been registered.

3. After completion of the investigation, charge sheet has been filed before the JMFC, Dharampuri, District Dhar, who has committed the case to the Court of Sessions, Dhar, which has been later on transferred to the 1st ASJ, Dhar. Trial court has framed the charges under Section 306 of IPC against the appellant Mohan and co-accused Kailash. They abjured their guilt and pleaded complete innocence. Trial court after

completion of the trial and scrutinizing the evidence available on record, convicted and sentenced the appellant Mohan as mentioned hereinabove, but the co-accused Kailash has been acquitted from all the charges. Being aggrieved by the impugned judgment, the appellant has preferred this criminal appeal.

4. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is contrary to the law and facts on record. It is neither legal, nor proper, nor correct. The trial court was wrong in believing the prosecution witnesses and discarding the defence version and drawing unwarranted inferences. The trial court has ignored the material contradictions and omissions in the statement of the prosecution witnesses. Therefore, the conviction is bad in law. Hence, he prays that the impugned judgment of conviction be set aside and the appellant be acquitted from all the charges.

5. Per contra, learned counsel for the respondent/State opposes the prayer by submitting that the trial court after appreciating the evidence available on record in detail, came to the conclusion that the deceased was subjected to the cruelty and harassment by the appellant for the payment of Rs.10,000/-. The trial court has not committed any mistake, therefore, the present appeal deserves to be dismissed.

6. Learned counsel for both the parties heard at length and perused the entire record carefully.

7. So far as the death of the deceased is concerned, Dr. Mohan Gupta (PW-7) has conducted the postmortem of the deceased Dinesh. As per the statement of Dr. Mohan Gupta (PW-7) and his postmortem report (Ex.P/6), he opined that the cause of death of the deceased could not be determined. As per his opinion, the viscera of the various organs of the deceased was preserved and sent for its chemical examination and as per the FSL report (Ex.P/12), organophosphorus pesticide has been found in the viscera of the deceased. Therefore, on the basis of the FSL report, it is proved that the deceased has died on account of consuming poisonous substance.

8. Dhan Singh (PW-1) who happens to be the relative of the deceased, stated in his statement that Mohan Singh told him that Dinesh has taken his 10,000/- Rupees and he said to Dinesh to return the money, but Dinesh replied that he has no money and he has not taken any money. Then Mohan said him that you should pay the money. Then Mohan took Dinesh with him and after 3 days Dinesh was found in dead condition. Dhan Singh (PW-1) further stated that he does not know how Dinesh has died.

9. Dalsingh (PW-2), who happens to be father of the deceased Dinesh, categorically stated in his statement that his son Dinesh was working as a servant with Ramsingh and appellant Mohan informed him that Dinesh has stolen his money. Then Dalsingh (PW-2) said to Mohan that you should lodge report, otherwise I will do it. Then Mohan

told him that he will bring Dinesh in next two days. Dalsingh (PW-2) further stated that his father-in-law Dhan Singh informed him that Mohan took Dinesh with him by stating that Dinesh has stolen his money and thereafter Dinesh has consumed some medicine on account of the threat given by the appellant, due to which he has been died.

10. Prosecution has also examined Ramsingh (PW-3), who has turned hostile and categorically stated that no conversation of Dinesh and Mohan has been done before him regarding any money transaction.

11. Learned counsel for the appellant submits that there are material contradictions and omissions in the statement of Dhan Singh (PW-1), Dalsingh (PW-2) and Ramsingh (PW-3), therefore, their statements cannot be relied upon.

12. Dalsingh (PW-2) stated that Dhansingh informed that appellant Mohan showed knife to Dinesh, but Dhansingh (PW-1) did not state anything about the knife. Dhansingh (PW-1) stated that at the time of incident Ramsingh's work was not completed by Dinesh and his money was due towards Ramsingh. Dhansingh (PW-1) in his examination-in- chief stated that appellant had threatened to Dinesh that " pkdw ls QkM+ nwaxk", but the same version is not found in his police statement (Ex.D/1). Dalsingh (PW-2) also stated that Mohan had shown knife to Dinesh, but the same version is not found in his police statement (Ex.D/2). Therefore, it appears that there are material contradictions and

omissions in the statement of the aforesaid witnesses; in their court statement and the police statement. In view of the aforesaid, their statements appears to be doubtful and the same cannot be considered as trustworthy.

13. To constitute abetment within the meaning of Section 107 read with Section 306 of the IPC, it must be demonstrated that the accused had instigated, provoked, incited, suggested or goaded the deceased to commit suicide and that, such result was intended by the accused. In a number of decisions, the apex Court has considered whether assault or harassment simplicitor can amount to abetment within the meaning of Section 107 read with Section 306 of the IPC. Each time, the apex Court has answered the issue in negative, stating that harassment or assault simplicitor cannot amount to abetment. In this regard, we can usefully refer to the decision rendered by this Court in M.Cr.C. No.1742/2016 (Bittu @ Girriraj vs. State of M.P., Order dated 08.03.2017, Bench Indore), wherein the legal position has been considered in the light of various pronouncements of Hon'ble the apex Court; relevant paras whereof run as under:

09. 'Abetment to commit suicide' is an offence under Section 306 of IPC punishable with imprisonment for a term which may extend to 10 years and fine. Expression 'Abetment' has been defined in Section 107 of IPC which runs 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 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. Explanation 1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

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".

10. In the State of Punjab Vs. Iqbal Singh, AIR 1991 SC 1532, the apex Court explaining the meaning and expanse of word 'abetment' as used in Section 107 of IPC, has held as under: "Abetment" as defined by Section 107 of the IPC comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of that thing, and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who abets an offence or 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.

11. In Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618, a three Judge Bench of the apex Court explaining the meaning and connotation of word "instigation" has held as under (para. 20):

"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."

12. Taking note of the fact that each person's suicidability pattern is different from others and that each person has his own idea of self-esteem and self-respect, the apex Court in M. Mohan Vs. State, Represented by the Deputy Superintendent of Police, 2011 CRI.L.J. 1900 (S.C.), referring to its earlier decision in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), 2009 (16) SCC 605, held that to constitute abetment, there should be intention to provoke, incite or encourage the doing of an act by the accused.

13. Reference can also be made to the decision of the apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (Suppl.) Cr.L.R. (SC) 261, wherein the allegation was that the deceased was beaten by the accused and was also subjected to harassment, due to which he committed suicide by consuming poisonous substance. The apex Court referring to its earlier decisions in Mahendra Singh & Anr. Vs. State of M.P., (1995) Supp. 3 SCC 731 and Ramesh Kumar Vs. State of Chhatisgarh, (2001) 9 SCC 618, holding that offence of abetment to commit suicide under Section 306 of IPC is not made out, observed as under:

"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".

14. In the case of Devendra Singh Vs. State of M.P. 2007(3) M.P.H.T. 247, the co-ordinate Bench of this Court in para 6 held as under:

"6. Now, adverting to the facts of the instant case, the suicide note allegedly left by the deceased indicates that the deceased committed suicide being fed-up with his life. It also prima facie indicates that the applicant was threatening the deceased for last one month prior to the occurrence in order to recover his money lent to the deceased. It nowhere indicates that the applicant intended that deceased should commit suicide or instigated him to commit suicide. The consistent view of this Court as enunciated in various decisions cited above, has been that demand of money or loan does not amount to an abetment of commission of suicide."

15. In another case of Ramchandra Vs. State of M.P. reported in 2009(2) MPLJ 147, this Court has held that:-

"The deceased committed suicide on account of playing dishonesy in a transaction of loan by the petitioner- The act as alleged against the petitioner does not amount to instigation nor constitutes aid in commission of the suicide by the deceased. Order framing charge against the petitioner for offence under Section 306/34 IPC was set aside."

16. Reverting back to the present case, if we apply the principle laid down by the Hon'ble Apex Court in the aforementioned cases, it appears that the relatives of the deceased Dinesh have stated in their statements that prior to the incident the appellant has blamed the

deceased for stealing his money. If the appellant has made false allegation against the deceased regarding theft of money, then deceased had an option to make report before the legal authorities, however he has not opted the same. If without taking any recourse to law the deceased decided to end his life, then the said act of the deceased would not come within the purview of Section 107 of IPC. It also does not come within the purview of "instigation" for commission of suicide. Similar view has been taken by the Hon'ble Apex Court in the case of Netai Dutta Vs. State of West Bengal reported in 2005 SCC (Cri) 543, in which it has been held that "when the deceased could not pay the loan, he committed suicide. By that act of the deceased, it cannot be said that the petitioner instigated the deceased to commit suicide."

17. Therefore, it is clear that mere hurling of abuses, intimidation and threats of any kind are not strong enough causes to compel a person of age of majority to end his or her life. More strong and pressing reasons are required to be shown by the prosecution to make out a case for abetment to commit suicide.

18. In view of the above, this Court is of the considered opinion that all the important clause and proximate link between the cause and the suicide seems to be not only weak but missing in the present case. The trial court speculated the unnatural death of deceased Dinesh and without any cogent evidence concluded only through conjectures, that the appellant is guilty for abetment of suicide of the deceased. In such

circumstances, this Court has no hesitation in declaring that the trial Court has erred in concluding that the deceased was instigated to commit suicide by the appellant. Therefore, the offence of abetment to suicide is not made out against the appellant.

19. In view of the aforesaid, in the present case the benefit of doubt is to be given to the appellant and accordingly the appeal is allowed. The appellant Mohan is acquitted from the charge under Section 306 of IPC. His bail bond stands discharged.

C.C. as per rules.

(ANIL VERMA) JUDGE Trilok/-