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Cr.R.No. 2859/2016
21.09.2017
Shri Siddarth Datt, counsel for the petitioner.
Shri Ramesh Kushwaha, panel lawyer for the respondent
State.
The case is posted on admission; however, since all
documents necessary for disposal of this criminal revision are
available and the parties are represented, the matter is admitted
and heard finally by consent.
This criminal revision filed on behalf of the
accused/petitioner Manish Kori is directed against the order dated
25.10.2016 passed by the Court of 7th Additional Sessions Judge,
Sagar in Sessions Trial No. 3900434/2016, whereby a charge
under Section 306 of the IPC was framed against the
accused/petitioner.
As per the prosecution case, the deceased was a 19 years
old married woman with a one and a half year old daughter.
Petitioner Manish Kori was her neighbour. He used to call the
deceased on her mobile phone and used to express his love for her
and used to proposition her for marriage and threatened that if she
would not marry him, he would kill her, her husband and
daughter. This harassment continued for a period of about 8 days.
During that period, petitioner made numerous phone calls to the
deceased. Unable to bear the persistent harassment, deceased
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committed suicide by pouring kerosene upon her and setting
herself ablaze.
Learned counsel for the petitioner submits that even if all
allegations made against the petitioner are taken at their face value
and presumed to be true, his acts and conducts would not fall
under the category of abetment of suicide.
Learned panel lawyer for the respondent State has
supported the impugned order mainly on the ground that there was
relentless harassment to deceased for marriage inspite of the fact
that she was already married and had a daughter. Due to his
persistent phone calls, she was under severe mental stress and was
left with no option but to commit suicide. It has also been
submitted that the deceased has squarely blamed the petitioner for
her suicide in two dying declarations made by her to the police
and to the Executive Magistrate.
Now, the question that arises for consideration is whether
the conduct of the petitioner as brought forth in the statements of
the witnesses constitutes abetment of suicide?
Section 306 of the Indian Penal Code reads as follows:
“306. Abetment of suicide.- 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 extent to ten years, and shall also
be liable to fine.”
Term abetment has been defined under section 107 of the
Indian Penal Code which is as hereunder:
“107. Abetment of a thing.- A person abets the doing of a thing, who-
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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 aides, by any act or illegal omission, the doing of that
thing.”
It has been held by the apex Court in the case of Ramesh
Kumar Vs. State of Chattisgarh, (2001) 9 SCC 618 that:
“To satisfy the requirement of instigation though it it 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 (Emphasis supplied)
The Supreme Court has observed in the case of Gangula
Mohan Reddy Vs. State of Andhra Pradesh, 2010 Cr.L.J. 2110
(Supreme Court) that:
“20. 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.
21. The intention of the Legislature and the ratio of the cases decided by
this Court is clear that in order to convict a person under Section 306, IPC
there has to be a clear mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to commit suicide seeing no
option and this act must have been intended to push the deceased into such a
position that he committed suicide”…..
(Emphasis supplied)
The Supreme Court further observed in the case of Ramesh
Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618 that:
“The present one is not a case 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 option accept to commit suicide in which
case an instigation may have been inferred.”
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Likewise in the case of Milind Bhagwanrao Godse Vs.
State of Maharashtra and another, (2009) 3 SCC 699, it was
observed that:
“The circumstances enumerated in the suicide note and oral evidence show
that accused created circumstances which left no option for the wife but to
take the extreme step of putting an end to her life.”
On the same point, the High Court of Madhya Pradesh in
the case of Aman Singh Vs. State of M.P., 2005 (2) JLJ 224
observed as hereunder:
“More so, in this case the accused has not 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 an
instigation may have been inferred.”
In the case at hand, on the basis of the call records and
seizure of the mobile phone belonging to the deceased from the
possession of the petitioner, as also the dying declarations made
by the deceased, it is established that the petitioner was making
persistent phone calls to the deceased over a period of about a
week; however, there is nothing on record to indicate that the
petitioner actively instigated the deceased to commit suicide.
Now the question that remains for consideration is whether
the petitioner had created such a situation for the deceased;
wherein, she was left with no alternative but to commit suicide.
Even if it is assumed for the sake of argument that the petitioner
was making mischievous phone calls using a fictitious name
propositioning the prosecutrix and threatening to kill her husband
and daughter, in case she failed to oblige, it cannot be said that the
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deceased was left with no option but to commit suicide. There
were several options before her. She could have blocked the
number of the petitioner in her mobile phone. She could have her
husband and her in-laws into confidence in order to relieve her
stress. She could have lodged a report in the police so that the
person making calls could have been traced and the matter taken
to its logical conclusion. However, she failed to exercise any of
the aforesaid options and instead, impetuously set herself on fire.
It is clear that the petitioner had no reason to conceive a nexus
between his acts vis-a-vis the deceased and the result that ensued.
This clearly was an over action on the part of the deceased for
which the petitioner cannot be held legally liable.
Thus, the meas rea necessary for constituting the offence
under Section 306 of the IPC is missing from the case. As such,
there is no sufficient ground to proceed against the petitioner
Manish Kori under Section 306 of the IPC and the charge framed
against him under that provision is not sustainable in the eyes of
law. As such, the petitioner is entitled to be discharged in respect
of aforesaid offence; however, it is on record that the petitioner
had stolen the mobile phone of the deceased from her residence.
He had also threatened the deceased. It is for the trial Court to
consider, whether any other offence is made out in the facts and
circumstances of the case on the basis of material available on
record.
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In the result, this criminal revision succeeds in part.
petitioner Manish is discharged in respect of the offence
punishable under Section 306 read with section 34 of the IPC.
The trial Court is directed to consider the matter with regard
to charge afresh and after giving an opportunity of being heard to
the petitioner, frame such charge other than the one under Section
306 of the IPC, if any, and proceed with the matter accordingly.
(C.V. Sirpurkar)
Judge
sp signed by SUNIL
Digitally
KUMAR PATEL
Date: 2017.09.22 11:11:50
+05’30’
