Rajasthan High Court - Jodhpur

Bherulal vs State Of Rajasthan ... on 9 February, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/004595]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 699/2021

1. Bherulal S/o Shri Uda, Aged About 54 Years,

2. Kalu @ Karu S/o Shri Devilal @ Deva, Aged About 37 Years, Both R/o Devli, Ps Chhoti Sadri, District Pratapgarh.

----Petitioners Versus

1. State Of Rajasthan

2. Lehari Bai W/o Shri Nanu Ram, R/o Village Devli, Ps Chhoti Sadri, District Pratapgarh.

----Respondents

For Petitioner(s) : Mr. Sheetal Kumbhat For Respondent(s) : Mr. Abhishek Purohit, AGA Ms. Khushboo Vyas

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment/Order

09/02/2023

Heard learned counsel for the parties.

The present revision petition has been filed against the order

dated 27.08.2021 passed by the Additional Sessions Judge &

Special Judge SC/ST Court, Pratapgarh in Sessions Case

No.79/2016(10/2013), whereby, charge under Section 306 of the

IPC has been framed against the present petitioners.

Briefly facts of the case are that on 07.10.2012, on an oral

information given by the complainant- Smt. Lehri Bai, an F.I.R.

was registered against the petitioners. It was mentioned that at

around 03:00 P.M. her husband-Nanu Ram came to their

agricultural field on motorcycle. After parking the motorcycle,

when Nanu Ram came towards the agricultural field, Bheru & Kalu

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who are the immediate neighbours started assaulting her

husband. The petitioners- Bheru & Kalu regularly indulged in

altercations with Nanu Ram and assaults him. Her husband getting

fed-up with the issue with the petitioners, told them that he would

jump in the well and die. On this statement, the petitioners told

her husband that if he wants to die tomorrow, die today. After this

statement, the complainant's husband jumped into the well along

with motorcycle, resulting into his death. After this the police

filed charge-sheet and after taking cognizance, the learned trial

Court has framed the charge of Section 306 of the I.P.C. against

the present petitioners and hence this revision petition.

Learned counsel for the petitioners submits that a close look

at the facts in the present case clearly show that the petitioners

never instigated or abetted Nanu Ram to jump into the well and to

commit suicide. Learned counsel for the petitioner further submits

that even as per Section 107 of the I.P.C., if Nanu Ram himself

has offered to jump in the well and the petitioners have stated

that if he wants to jump tomorrow, jump today and die, will not

amount to instigating or abetting Nanu Ram to commit suicide.

Learned counsel for the petitioners relied upon the judgment of

the Hon'ble Supreme Court in the case of Sanju Alias Sanjay

Singh Sengar V/s State of M.P. reported in 2002 Supreme

Court Cases (Cri) 1141 and the judgment of this Court in the

case of Hari Singh S/o. Hem Singh & Anr. V/s State of

Rajasthan reported in 2000 Cr.L.R. (Raj.) 358.

On the strength of the judgments, learned counsel for the

petitioners submits that learned trial Court has committed an error

while framing the charge against the petitioners under Section 306

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of the I.P.C. He, therefore, prays that the present revision petition

may be allowed and the order of framing the charge under Section

306 of the I.P.C. against the petitioners may be quashed and set-

aside.

Per contra, learned Additional Government Advocate and

learned counsel for the respondent have vehemently submitted

before this Court that there is ample material on record to show

that the petitioners have instigated or abetted Nanu Ram to jump

into the well and commit suicide. She submits that the statement

of Smt. Lahari Bai is clear and categoric to the effect that the

petitioners were indulging into the altercations with her husband

and were regularly assaulting him. Getting fed-up from the daily

harassment of the petitioners, he committed suicide and,

therefore, the reason for commission for suicide is nothing but

instigation or abetment of the petitioners. She, therefore, submits

that the learned trial Court has rightly framed the charge under

Section 306 of the I.P.C. and prays that the revision petition may

be dismissed.

I have considered the submissions made at the Bar and gone

through the relevant record of the case including the impugned

order dated 27.08.2021.

The undisputed facts in the present case are that the

petitioners are the neighbours of the complainant and her

husband having their agricultural fields side-by-side. The exact

wording which need to be taken note of in the present case is

reflected in the verbal information given by the complainant on

07.10.2012 which reads as under : -

[2023/RJJD/004595] (4 of 8) [CRLR-699/2021]

"esjs ifr us bu nksuksa dks dgk fd rqe esjs ls ges"kk >xM+k djrs jgrs gks eSa dq, esa dwndj tku ns nqaxk ftl ij bu nksuksa us dgk fd dy ejrk gks rks vkt ej tkA"

The exact sentences which were spoken at the time of

incident stated above clearly shows that it was Nanu Ram himself

who offered to jump into the well. The petitioners never abetted

or instigated Nanu Ram to jump into the well.

For proper adjudication of the case, Section 107 of the I.P.C.

reads as under :-

"Section 107 :- Abetment of a thing :-

A person abets the doing of a thing, who:

1.Instigates any person to do that thing; or

2.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

3.Intentionally aids, by any act or illegal omission, the doing of that thing."

But in the present case, since Nanu Ram himself uttered the

words that he will jump into the well and merely retorting Nanu

Ram to jump into the well today instead of tomorrow, will not

come into the definition of Section 107 of the I.P.C. The Act of

Nanu Ram in the present case appears to be an action taken by

him in heat of moment without any instigation by the petitioners.

The Hon'ble Supreme Court in the case of Sanju Alias

Sanjay Singh Sengar V/s State of M.P. reported in 2002

Supreme Court Cases (Cri) 1141 held as under : -

"Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25-7-

1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the

[2023/RJJD/004595] (5 of 8) [CRLR-699/2021]

deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25- 07-1998 ensued by quarrel. The deceased was found hanging on 27-07-1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25-07-1998 drove the deceased to commit suicide. Suicide by the deceased on 27- 07-1998 is not proximate to the abusive language uttered by the appellant on 25-07-1998. The fact that the deceased committed suicide on 27-07- 1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25-07- 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."

The Hon'ble Supreme Court in the case of Swami

Prahaladdas V/s. State of M.P. and Anr. reported in 1999

Cr.L.R.[SC] 141 occasioned to facts of similar nature in which

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during quarrel, the appellant remarked the deceased that 'go and

die' and the deceased thereafter, committed suicide. The Hon'ble

Supreme Court held that :-

"....Those words are casual nature which is ofen employed in the heat of moment between quarreling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite 'mens rea' on the assumption that these words would be carried out in all events."

In the case of Hari Singh S/o. Hem Singh & Anr. V/s

State of Rajasthan (2000 Cr.L.R. (Raj.) 358), this Court held

as under :-

"In a case decided by me Ramesh Chandra Vs. State of Rajasthan reported in 1997 Cr.L.R. (Raj.) page 620 it has been held that word abetment as used in Sec. 107 IPC means that a person abets the doing of a thing who firstly instigates any person to do a 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. There is nothing on record in this case that the petitioners intended or wanted the deceased to commit suicide and thus in any way abetted it.

The Supreme Court in a recent judgment Swamy Prahaladdas Vs. State of M.P. & Anr. reported in 1999 Cr.L.R.(SC) page 141, has held that when the deceased committed suicide and the remarks used were "to go and die", which were casual in nature which are often employed in the heat of moment, if cannot be said that the suicide was the direct result of words uttered, is not acceptable. It was held that in such cases there should be reflection of mens-rea. In another judgment of the Supreme Court in Chanchal Kumari & Ors. Vs. Union Territory, Chandigarh, 1999 Cr.L.R.(SC) page 152, it has been held that there should be intention to abet suicide. In the present case there is nothing

[2023/RJJD/004595] (7 of 8) [CRLR-699/2021]

on record to show that the petitioners had such a mens rea or intention that the deceased should commit suicide. Consequently, they should not have been charged with offence u/s. 306 IPC. I am conscious that even strong suspicion can be the basis to frame charge. In this case, no such circumstance is found.

Consequently, the revision petition is allowed and the order of learned Addl. Sessions Judge framing charge against the petitioners is set aside. They are discharged from the offence under Section 306 IPC."

The facts of the present case also clearly depict that Nanu

Ram after the altercations between him and the petitioners

uttered the words that he would jump into the well which was

retorted by the petitioners by saying that if you want to jump

tomorrow, why not jump today itself, does not contain the

necessary ingredients to make out a case under Section 306 of

the I.P.C.

In the light of the authoritative pronouncements of the

Hon'ble Supreme Court in the cases Sanju Alias Sanjay Singh

Sengar(Supra) & Swami Prahaladdas(Supra) as well as the

judgment of this Court in the case of Hari Singh S/o. Hem

Singh & Anr.(Supra) does not constitute the offence under