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Vijay Kumar Dhankar vs The State Of Madhya Pradesh on 12 July, 2017



Shri Sumit Raghuwanshi, learned counsel for the petitioner.
Shri Pramod Pandey, learned Government Advocate for

This revision under Section 397 read with Section 401 of
Cr.P.C. is directed against order dated 18/11/2016 passed by JMFC,
Bhopal in which cognizance has been taken against the petitioners for
offences under Section 306 read with Section 511 of IPC.

Brief facts just necessary for disposal of this petition are that, the
complainant/Ritu Kumari lodged a report that the accused, her senior
officer called her to the office and made her sit outside for one and a
half hour. After sometime, she was called in and she was made to
stand near by his chair. He scolded her for not bringing the keys of the
scooty. There was an altercation between her. The accused Vijay
Kumar Dhankar allegedly used criminal force. The untoward
behaviour of Vijay Kumar Dhankar and molestation, she managed to
go to the hostel and informed the incident to one Surendra Singh. She
tried to commit suicide by the official revolver issued by her. For
treatment of the injury received by her by the fire arm, she was taken
to hospital. Her dying declaration was recorded, later, she recovered.
Offences under Sections 354 (A) (1) (4), 354(d) (1) (1) and 354 of IPC
was registered against the accused Vijay Kumar Dhankar. After filing
charge-sheet, Criminal Case No.308/2015 was registered. After
charges have been framed, statement of the prosecutrix was recorded.

During this proceeding, an application under Section 216 of
Cr.P.C. was filed by the prosecution contending that offence under
Section 306 read with Section 511 of IPC is made out against the
accused/Petitioner, Vijay Kumar Dhankar. Learned trial Court having
heard the parties passed the impugned order dated 18/11/2016,
wherein it has been held that, accused has committed offence under
Section 306 read with Section 511 of IPC and non-bailable warrant
has been ordered to be issued against the petitioner.

On behalf of the petitioner, it is contended that offence under
Section 306 of IPC is made out when commission of suicide takes
place. The evidence available on record show that the
complainant/Ritu Kumari has not committed suicide, though she
attempted to commit suicide. Therefore, order dated 18/11/2016 is
illegal and liable to be set aside. It is also contended that the
allegations made by the complainant against the petitioners is totally
false and fabricated. Complainant was very negligent and careless in
attending her duties. When the petitioner, being an officer, asked her
the reason of being late, he has been victimized by the concocted
story. Had there been attempt to commit suicide by service revolver on
account of personal frustration. She could have been charged for
offence under Section 309 of IPC. The complainant just to save herself
from the prosecution, concocted the story and levelled charges against
the petitioner. Offences under Section 306 read with Section 511 of
IPC is made out. Therefore, order dated 18/11/2016 be set aside.

Learned GA for the respondent/State opposing the contentions
submitted that Section 306 of IPC provides punishment for abetment
to commit suicide. If there is no abetment, there is no question of
offence under Section 306 coming into play. But, as the
complainant/prosecutrix attempted to commit suicide and even after
the fire arm injury, she remained alive. Therefore, it is clear cut case
under Section 306 read with Section 511 of IPC.

Perused the police diary and the order impugned.
Section 511 of IPC provides for punishment for attempting to
commit offence, which are punishable with imprisonment for life or
other imprisonment for causing such an offence to be committed and
in such attempt does any act for commission of offence and where
there is no express provision in the IPC, for the punishment for such
an attempt.

Thus, it is clear that the provision makes “attempt to commit
offence” punishable. The offence attempted should be one punishable
by the IPC with imprisonment. The conditions stipulated in the
provision for completion of the said offence are one. (1) The offender
should have done some act towards the commission of the main
offence; (2) Such an attempt is not expressly covered as a penal
provision elsewhere in the Code. The provision of Section 306 of the
IPC provides, punishment for abetment for suicide. The essential
ingredients are, (i) that any person committed suicide; (ii) that such a
commission of suicide by the consequences of an abetment; and (iii)
that the abetment was made by the accused.

Counsel for the petitioner suggested that it could be offence
under Section 116 and not under Section 511. In this regard, it would
be appropriate to mention here that, Section 116 of IPC is with regard
to “abetment of offence punishment with imprisonment and if offence
be not committed”. The essential ingredients of Section 116 are:- (i)
offence was abetted; (ii) that offence was not committed, in
consequence of abetment; (iii) that there is no express provision in
penal code to punish such abetment and (iv) the offence abetted is
punishable with imprisonment.

In view of the above ingredients, it can be said that, crux of
offence under Section 306 of IPC itself is an abetment. If, there is no
abetment, there is no question for offence under Section 306 of IPC. It
is conceivable to have abetted an offence of abetment. Hence, there
cannot be an offence under Section 116 read with 306 of IPC.
Therefore, offence under Section 306 read with Section 511 of IPC
cannot be ruled out.

In every crime, there is firstly, intention to commit it; secondly,
preparation to commit it; thirdly, attempt to commit it and fourthly
commits the act. If the attempt fails, the crime is not complete but the
law punishes the person attempting the act. An “attempt” is made
punishable because every attempt although it fails success must
creates alarm which of itself, as an injury and the moral guilt of the
offender is the same as if he had committed the crime. The
prosecutrix, Ritu Kumari tried to commit suicide though she was
saved, therefore, offence under Section 306 of IPC was not complete.
Hence, offence under Section 306 read with Section 511 of IPC cannot
be ruled out. In this regard, the approach of the learned JMFC cannot
be said to be illegal.

The learned counsel for the petitioner has placed reliance on the
judgment of Allahabad High Court decided in Shiv Prasad Pandey
Vs. State of U.P. reported as 2003 Cr.L.J 1835 and Satvir Singh
others Vs. State of Punjab decided by the Hon’ble Apex Court an
Appeal (Criminal) 1319/1998 decided on 27/09/2001 related to the
domestic quarrel and offence under Section 498-A of IPC read with
Section 304-B of IPC, therefore, the ratio of those cases cannot be
applied in the present case.

In the circumstances prevailed in the case, this Court considered
that the order impugned does not suffer from any irregularity,
therefore, it is not a fit case to interfere.



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